106 – Why mediation works with Farley Tolpen

This week we’ve invited  Farley Tolpen to join us.  Farley is a lawyer and an accredited mediator and became the CEO of Mediation Experts in 2013.  Farley has more than 30 years experience working in the law both in the US and Australia.  He became a mediator because he came to realize that the courts are broken.  Family court, for example, can take up to two years to get to trial.  Mediation offers a much cheaper and more effective alternative.  Farley has litigated many cases over the years and that has helped him become a good mediator.  “One thing they don’t teach you in law school is life experience,” he says.

One of the biggest reasons to use a mediator is a cost.  The courts can take years.  A mediator will take just a few months.  The savings in time and money is enormous.  The other benefit of mediation is that it can be a healing process.  Disputes among business partners, for example, can become very ugly.  Farley likes to use a premediation process when he takes a case.  He likes to talk with both parties for about an hour.  They work out how long it will take and time frames.  Then he talks about the history of the case.  He tries to understand the root of the issue on both sides.  What’s really driving this problem?  He builds a rapport with both sides in order to build up trust.

The next step is to set a date for the mediation session.  Farley sits with each side separately for about a half-hour to discuss how things are going to work.  He then brings both parties together in the same room in order to set an agenda.  This process is particularly useful because it teaches them how to communicate in the future.  Most of the time it works because the process is clearly understood by everyone involved.  A session can be very long but others can be quite short.

In mediation there is something called “the four agreements”.  They are: be impeccable with your word, don’t make assumptions, don’t take things personally and always do you best.  The hardest thing to do in mediation is to not take things personally.  That goes for the mediator and the parties involved in the mediation.  It’s not the place for the mediator to make judgements.  The ultimate result is going to come from the parties not the mediator.  The four agreements are useful not only in mediation.  They’re good rules to live by.

Difficult clients or difficult lawyers is something every mediator has to deal with.  In those moments Farley likes to implement something called E-A-R – empathy, attention and respect.  He tries to slow things right down and try and take the emotion out of it.  Challenging someone in an aggressive manner is never going to work.  The key to being a great mediator is reading people.  Empathy is the most important skill.

Farley thinks that mediation is going to become a much more important part of Australian law in the future.  The courts can’t keep up and disputes will have to be resolved in different ways.  In the future the courts will demand that mediation be attempted before going to trial.  Family, civil and small claims cases will increasingly be decided by arbitration or mediation in the future.