Civility, connection, and the work of the mediator
By Chad D. Engelhardt
In a recent webinar presentation on behalf of the Alternative Dispute Resolution Section of the State Bar of Michigan, retired mediator Sheldon “Shel” Stark distilled a half-century in and around Michigan courtrooms and mediation conference rooms into a single, critical proposition: the mediator’s most important work is to make the people in the room feel heard.
Stark is one of the founders of ADR practice in Michigan. He served as Education Director and later Director of Specialty Programs at the Institute of Continuing Legal Education from 1999 onward, where the courses department earned seven international ACLEA Best Awards under his leadership; he is one of the three core trainers in ICLE’s 40-hour civil mediation course; and his contributions to the profession have been recognized with the Michael Franck Award from the State Bar’s Representative Assembly and, more recently, the ADR Section’s Distinguished Service Award. Before all of that, he spent twenty-seven years as a litigator.
—————
The mediator as listener
Stark’s central message is that mediation is, before anything else, an act of listening. By the time a case reaches a neutral, the parties have spent months or years feeling unheard by the other side, often by their own lawyers, sometimes by the system itself.
The papers in front of the mediator were drafted by counsel, not the parties, and the facts in them may be incomplete or wrong. Many lawyers, even good ones, have never had a hard conversation with the client about what the client actually wants. The mediator is often the first person to ask the parties, with genuine curiosity, what is driving the conflict.
That is why Stark begins every mediation by getting acquainted, building rapport and trust. He asks parties to tell him about themselves, taking their measure not just as decision-makers but as people. He asks how they prefer to be addressed; where a title like “Doctor” might create a power imbalance, he addresses everyone uniformly as “Mr.,” “Ms.”.” He maintains eye contact throughout, checking in across the room when a witness concedes a point, when a number lands, when a risk is named. Eye contact, he reminded the section, is not a courtesy. It is the simplest signal that someone has been seen.
—————
Civility as a core method, not just manners
Stark’s career has tracked the State Bar’s long effort to make civility a defining feature of Michigan practice, and his talk made plain that civility in mediation is not decorative. It is the method. When a lawyer escalates in a joint session, even after promising to be a joint problem-solver, Stark listens fully, lets the emotion run, and then says, “Wow, I love your passion. I really respect lawyers who believe in their clients.” The reframe acknowledges the feeling, honors the advocacy, and clears the air without anyone having to back down. When the client escalates, the same discipline applies: listen, reflect, show that the message has been received.
He cautioned against the casual register that erodes professionalism, the “okay, you guys” creeping into joint sessions, and against jargon thrown at parties who cannot follow it. ADA, FMLA, FLSA, Daubert, summary judgment: every unexplained acronym is a moment of exclusion. The mediator who translates is the mediator who is trusted, and trust is what civility produces. Mediators are also always being watched in the elevator, in the parking lot, at the lunch table. Civility off-stage matters as much as civility in caucus, and the mediator who models it gives every participant permission to do the same.
—————
Finding the truth of the human story
By the time disputes reach mediation, lawyers and clients have fallen in love with their claims and defenses. And, as the saying goes, “love is blind”. The mediator’s task is not to take sides but to surface the warts symmetrically in both rooms, so each party can see the case as the other side and a fact-finder might. That is honest work, and it can only be done after the parties feel heard. Risk questions land very differently when the person being asked believes the mediator is asking from respect rather than judgment.
Every case, Stark insisted, contains its own truths. The mediator’s discipline is to find them and help each side build a plausible human story from them for the other room. “Once I understand the dynamics of the conflict,” he has put it elsewhere, “I derive great satisfaction from the search for a solution that will work for both sides. Some would call this ‘peace making.’” It is a fair description, and it explains why authentic listening and the trust it engenders, not technique, not posture, not pressure, is the threshold capacity for the work of the mediator.
—————
Teaching, coaching, and modeling the ‘Adult in the Room’
A mediator who builds trust and teaches inherits what social scientists call the halo effect. The trust and goodwill we extend to a teacher we once admired. Stark leans into this deliberately. He maintains a website with guides on negotiation, mediation summaries, and presentations to opposing decision-makers, and he carries a deck of slides on his iPad to illustrate concepts visually.
When summary judgment becomes a risk topic, as it does in nearly every employment case, he stops and explains what the motion is, how often it is granted, and what happens to a plaintiff who loses one. Parties
cannot weigh a risk they do not understand, and translating doctrine into stakes is part of how the mediator earns the room’s confidence.
He coaches the lawyers during the negotiation, too. The complaint that mediators merely shuttle numbers is fair when it is true and avoidable when it is not. Stark asks counsel’s permission to coach, then probes the message a particular number sends and how it was derived. A figure grounded in a reasoned rationale, back-pay assumptions, future losses, an emotional-distress methodology, fee and cost records, and an honest probability assessment anchors the room in shared assumptions rather than competing instincts. “If it’s my gut versus your gut,” he quoted Paul Monaghan, “you’re not going to get very far.”
Through all of it, he is modeling the “adult in the room.” Calm in the face of emotion, prepared, present, and unfailingly respectful, including to the lawyer who is being difficult and the client who is escalating.
Modeling civility, Stark argued, is how the mediator earns standing to ask a hard question late in the afternoon, and it is also how mediation, done well, becomes one of the most reliable engines of civility our profession has.
—————
A closing note
Toward the end of a mediation, after every question has been aired and every fact developed, Stark shifts gently from facilitation toward evaluation. He quotes U.S. District Judge David Lawson as saying, “a good settlement is always better than a good case, because you can always lose a good case.” Stark astutely concludes, “the dice are the client’s to roll. The mediator’s job is to make sure the client understands what the dice look like and feels respected and heard before deciding whether to let go.”
Stark’s lessons are reminders that connection precedes resolution, that civility is the mediator’s primary tool, and that the parties’ sense of being heard is not a soft outcome of the process. It is the process.
______
Chad Engelhardt is an Ann Arbor based attorney and mediator focusing his practice on the compassionate and ethical resolution of catastrophic injury and medical malpractice cases. He serves as an adjunct professor at Wayne State University Law School and College of William of Mary Law School. He is the Chair of the ADR Section of the Washtenaw County Bar Association and, the current chairperson of the Institute of Continuing Legal Education executive committee.
In a recent webinar presentation on behalf of the Alternative Dispute Resolution Section of the State Bar of Michigan, retired mediator Sheldon “Shel” Stark distilled a half-century in and around Michigan courtrooms and mediation conference rooms into a single, critical proposition: the mediator’s most important work is to make the people in the room feel heard.
Stark is one of the founders of ADR practice in Michigan. He served as Education Director and later Director of Specialty Programs at the Institute of Continuing Legal Education from 1999 onward, where the courses department earned seven international ACLEA Best Awards under his leadership; he is one of the three core trainers in ICLE’s 40-hour civil mediation course; and his contributions to the profession have been recognized with the Michael Franck Award from the State Bar’s Representative Assembly and, more recently, the ADR Section’s Distinguished Service Award. Before all of that, he spent twenty-seven years as a litigator.
—————
The mediator as listener
Stark’s central message is that mediation is, before anything else, an act of listening. By the time a case reaches a neutral, the parties have spent months or years feeling unheard by the other side, often by their own lawyers, sometimes by the system itself.
The papers in front of the mediator were drafted by counsel, not the parties, and the facts in them may be incomplete or wrong. Many lawyers, even good ones, have never had a hard conversation with the client about what the client actually wants. The mediator is often the first person to ask the parties, with genuine curiosity, what is driving the conflict.
That is why Stark begins every mediation by getting acquainted, building rapport and trust. He asks parties to tell him about themselves, taking their measure not just as decision-makers but as people. He asks how they prefer to be addressed; where a title like “Doctor” might create a power imbalance, he addresses everyone uniformly as “Mr.,” “Ms.”.” He maintains eye contact throughout, checking in across the room when a witness concedes a point, when a number lands, when a risk is named. Eye contact, he reminded the section, is not a courtesy. It is the simplest signal that someone has been seen.
—————
Civility as a core method, not just manners
Stark’s career has tracked the State Bar’s long effort to make civility a defining feature of Michigan practice, and his talk made plain that civility in mediation is not decorative. It is the method. When a lawyer escalates in a joint session, even after promising to be a joint problem-solver, Stark listens fully, lets the emotion run, and then says, “Wow, I love your passion. I really respect lawyers who believe in their clients.” The reframe acknowledges the feeling, honors the advocacy, and clears the air without anyone having to back down. When the client escalates, the same discipline applies: listen, reflect, show that the message has been received.
He cautioned against the casual register that erodes professionalism, the “okay, you guys” creeping into joint sessions, and against jargon thrown at parties who cannot follow it. ADA, FMLA, FLSA, Daubert, summary judgment: every unexplained acronym is a moment of exclusion. The mediator who translates is the mediator who is trusted, and trust is what civility produces. Mediators are also always being watched in the elevator, in the parking lot, at the lunch table. Civility off-stage matters as much as civility in caucus, and the mediator who models it gives every participant permission to do the same.
—————
Finding the truth of the human story
By the time disputes reach mediation, lawyers and clients have fallen in love with their claims and defenses. And, as the saying goes, “love is blind”. The mediator’s task is not to take sides but to surface the warts symmetrically in both rooms, so each party can see the case as the other side and a fact-finder might. That is honest work, and it can only be done after the parties feel heard. Risk questions land very differently when the person being asked believes the mediator is asking from respect rather than judgment.
Every case, Stark insisted, contains its own truths. The mediator’s discipline is to find them and help each side build a plausible human story from them for the other room. “Once I understand the dynamics of the conflict,” he has put it elsewhere, “I derive great satisfaction from the search for a solution that will work for both sides. Some would call this ‘peace making.’” It is a fair description, and it explains why authentic listening and the trust it engenders, not technique, not posture, not pressure, is the threshold capacity for the work of the mediator.
—————
Teaching, coaching, and modeling the ‘Adult in the Room’
A mediator who builds trust and teaches inherits what social scientists call the halo effect. The trust and goodwill we extend to a teacher we once admired. Stark leans into this deliberately. He maintains a website with guides on negotiation, mediation summaries, and presentations to opposing decision-makers, and he carries a deck of slides on his iPad to illustrate concepts visually.
When summary judgment becomes a risk topic, as it does in nearly every employment case, he stops and explains what the motion is, how often it is granted, and what happens to a plaintiff who loses one. Parties
cannot weigh a risk they do not understand, and translating doctrine into stakes is part of how the mediator earns the room’s confidence.
He coaches the lawyers during the negotiation, too. The complaint that mediators merely shuttle numbers is fair when it is true and avoidable when it is not. Stark asks counsel’s permission to coach, then probes the message a particular number sends and how it was derived. A figure grounded in a reasoned rationale, back-pay assumptions, future losses, an emotional-distress methodology, fee and cost records, and an honest probability assessment anchors the room in shared assumptions rather than competing instincts. “If it’s my gut versus your gut,” he quoted Paul Monaghan, “you’re not going to get very far.”
Through all of it, he is modeling the “adult in the room.” Calm in the face of emotion, prepared, present, and unfailingly respectful, including to the lawyer who is being difficult and the client who is escalating.
Modeling civility, Stark argued, is how the mediator earns standing to ask a hard question late in the afternoon, and it is also how mediation, done well, becomes one of the most reliable engines of civility our profession has.
—————
A closing note
Toward the end of a mediation, after every question has been aired and every fact developed, Stark shifts gently from facilitation toward evaluation. He quotes U.S. District Judge David Lawson as saying, “a good settlement is always better than a good case, because you can always lose a good case.” Stark astutely concludes, “the dice are the client’s to roll. The mediator’s job is to make sure the client understands what the dice look like and feels respected and heard before deciding whether to let go.”
Stark’s lessons are reminders that connection precedes resolution, that civility is the mediator’s primary tool, and that the parties’ sense of being heard is not a soft outcome of the process. It is the process.
______
Chad Engelhardt is an Ann Arbor based attorney and mediator focusing his practice on the compassionate and ethical resolution of catastrophic injury and medical malpractice cases. He serves as an adjunct professor at Wayne State University Law School and College of William of Mary Law School. He is the Chair of the ADR Section of the Washtenaw County Bar Association and, the current chairperson of the Institute of Continuing Legal Education executive committee.
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