Ed Ahrens, Jr., Esq. writes monthly thought provoking Editorials on mediation. These views are Ed's and do not necessarily reflect those of Florida Mediation Group.

Let each man pass his days in that
wherein his skill is greatest.

Sextus Propertius
c.54 B.C. – A.D. 2

How happy is he born and taught,
That serveth not another’s will;
Whose armor is his honest thought,
And simple truth his utmost skill!

Sir Henry Wotton
1568-1539

The question I pose is a simple one: Does a mediator, in order to be effective, require legal skill in the area of law involved in a mediated dispute?

I doubt there are many mediators who are skilled in all areas of the law. Each of us has one or more fortes, usually borne of our career experiences. Few of us are competent in all areas as legal practitioners—and therein lies the quandary.

Lawyer mediators are legal practitioners by professional status only. Their skills as mediators are unique to the mediation process. They include special rules of conduct, statutory and judicial mediation procedures, people skills, the power of persuasion, and an impartial approach far removed from the world of a litigating advocate.

Is a legal skill in the area involved in a dispute beneficial to the process? I would be hard pressed to say it is not. But the selection of a mediator should not stop there. I suspect-without necessarily putting myself in this category-there are mediators whose mediating skills are so well honed that a complete lack of experience in the legal area involved would not make a difference in his or her ability to conduct an effective mediation.

On the other hand, there are those mediators who are highly skilled in the area of law involved but woefully unqualified as mediators. Where does that leave them? Remember, a mediator is not allowed to render legal opinions and must rely on the legal knowledge of counsel present at the proceeding. And decisions, by law, must be left to the parties, not to the mediator.

Moreover, falling to the temptation to become involved in the legal issues may well cause the mediator to step outside the bounds of impartiality. How does one express a legal opinion of any nature without betraying a bias? Of course, it is not unheard of for counsel to prefer a mediator with a bent for judicial decree, but this does not exempt the mediator from the stringent rules set forth by the Florida Statutes and the Florida Supreme Court.

Perhaps it is all a matter of degree. A mediator highly skilled as a practitioner may be able to mask a lack of mediating skills. A superb mediator may be able cover up his lack of legal skills. Fortunately, many mediators are able to balance the two.

Should the mediator "pass his days in that wherein his skill is greatest"? Or will "honest thought and simple truth" suffice?

Let us know what you think.

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