Over those years, Steven M. Bierman became increasingly involved in mediations of disputes as an advocate for clients, which gave him a front-row seat, or really on the stage itself of the process, learning from a range of talented mediators — and even learning from opposing counsel — what worked, didn't work, and why. He became fascinated by the relationship and personal dynamics, issue and interest identification, and ultimately the opportunity to find a creative and lasting dispute resolution and, therefore, the problem’s solution. Training to become a mediator and then developing the experience needed to bring his litigation experience and judgment to bear on facilitating solutions through mediation was a natural, and he has to say, gratifying and joyous progression.
We asked him how his expertise informs his approach on the American Arbitration Association® Mediation Panel.
What motivated you to pursue mediation, and were there personal influences or professional experiences that shaped your path to joining the AAA?
I relished the intellectual challenge and adrenaline rush of combat by litigation, but I came to realize that the adversarial process frequently was misaligned from client objectives, interests, and needs and left the potential outcome in the hands of a stranger — whether judge, jury, or arbitrator — and that this misalignment often was glaring, even when litigating seemed a necessary predicate to an eventual negotiated outcome. By contrast, I came to appreciate the awesome potential of mediation in skilled hands to facilitate a self-determined, collaborative, and bespoke solution that directly served those same client objectives, interests, and needs while halting in its tracks the many-headed cost of continuing with litigation. Increasingly, I would ask mediators whom we had engaged for a case how and why they did what they did, until, one day, a terrific and patient mediator in a high-stakes and high-profile case finally said, "Steve, you've got a lot of questions, and they are the right ones. Just take the training already, and follow what your heart and mind already know." And she was right. My sensibility is cooperative rather than combative, my approach is problem-solving rather than pummeling, and my temperament seeks to make human connection rather than to make war. The song lyric from my youth — "War, what is it good for?" — was on the money, and everyone knows the answer (and "say it again"), and I came to understand that everything I had done in a long career as a litigator had prepared me for what I was really meant to do, which is to serve as a neutral assisting parties in bridging their differences and resolving their conflict. Joining the AAA panels as a mediator and arbitrator was the natural and happy consequence.
What do you value most about serving as a mediator with the AAA, and what aspects of the work do you find most meaningful for the parties you serve?
The AAA has designed an elegant yet practical architecture for offering mediation services to disputants covering a wide range of conflict subject matters and has invested in administrative infrastructure and development of user-friendly rules and ethical precepts to deliver those services for both parties and panel mediators. I greatly value the AAA's cornerstone commitment to efficiency, cost effectiveness, a fair process for all, and ethical standards for mediators, and I appreciate the professionalism and high standards throughout the AAA itself, from case managers to panel support to vast educational resources, all of which enable me to focus on the matters themselves and to provide the best mediation experience I can. I find particularly meaningful the process of learning about the facts, issues, people, dispute drivers, and possible pathways to resolution through mediation, asking questions, listening carefully and empathetically, and the organic building of trust and rapport with parties and counsel in service of participants determining a potential solution. Of all the dispute resolution tools in the toolbox, I find mediation both the most analytical and simultaneously the most "human" process, and the AAA empowers all stakeholders potentially to succeed. I am privileged to serve on multiple AAA panels and proud to identify myself as an AAA neutral.
How has your previous experience as an attorney, arbitrator, judge, or in another professional role shaped your approach to mediation?
As I noted, I had a long and varied career as a lead litigator and trial lawyer at a global law firm handling a wide range of business and other disputes, spanning more than 40 years in practice. Clients also routinely called on me to evaluate actual or potential claims, defenses, strategy, and risk assessment, from pre-litigation to the proverbial courthouse steps. My long practice and deep experience armed me with an informed perspective and judgment that I am able to bring to bear in each case in which I serve as a mediator. There can be a temptation for mediators to feel they've "seen the movie before," and worse, as a result to be fixed in their approach, thinking, or expression. Whatever the experience I may bring to the process, I am acutely mindful that each case is unique and that, for the participants, especially for the parties, it may be their first brush with the adversarial process and certainly their first viewing of this particular movie. In turn, my experience as an arbitrator on AAA panels across many cases has given me an additional perspective that informs my work as a mediator, in terms of what issues, evidence, and arguments may matter to a trier of fact. This perspective can be valuable to mediation participants, whether in a stand-alone mediation or in a mediation arranged while an underlying AAA arbitration is pending.
How do you approach the mediation process, and what strategies do you use to help parties move from conflict toward resolution?
Mediation is a powerful tool to help people and companies in conflict find common ground and forge a negotiated solution to their differences, allowing them to move forward in life or business in lieu of the expense, uncertainty, strain, and time involved if they instead continue in dispute. Mediation is party-driven, not mediator-driven, and each matter requires a bespoke approach that includes my exploring with the parties and counsel what approach may best suit their circumstances and dynamic. I take pains to ensure that the mediation experience is fair and respectful for all participants. I typically hold a preliminary planning conference with counsel to organize schedules and consider how the mediation can efficiently, cost-effectively, and best serve the parties’ interests. When beneficial and when there is interest, I may hold separate conferences with each side, whether with counsel or with parties and counsel. At the mediation session itself, I strive to be a patient listener and to hear, truly, what all participants say, to be empathetic while focusing attention on the practical, and to be curious and to ask questions that enable participants to feel they are heard and to help them identify issues and risks, explore viable options, and move toward an acceptable solution. I see my role as facilitating possible resolution, helping parties loosen their iron grip on positions and positional bargaining, cut through the posturing and noise to what really matters to them and to the dispute at hand, adding my assessment of issues or the case where the parties request. The core mediation principle of party self-determination guides me: it is the parties’ dispute, as must be any negotiated resolution, however much I may facilitate the outcome. I bring to bear my skills as a neutral developed in mediating and arbitrating more than 300 cases, my deep appreciation for the parties’ underlying business or personal circumstances, and my creativity, judgment, and experience born of more than four decades litigating a wide range of disputes. I ask questions in service of reality testing, whereby parties draw their own conclusions about issues, risks, and interests, rather than my talking at them. I find that parties’ thinking may evolve and become more flexible as the process unfolds. If participants hit a seeming impasse, it may be a sign that they should take a breather and regroup for a later session, or it may present an opportunity to utilize tools such as bracketed negotiations or, if requested, a mediator’s proposal. I treat an apparent impasse with respect for what it may mean, but also as an opportunity. I am always “reading the room” and listening as much or more than speaking, and I adapt my approach as warranted.
Without breaching confidentiality, can you share a moment or case in your mediation work that was especially rewarding or that highlighted the strengths of the process?
I can point to several matters in which I served as mediator: a mediation of parties to an ongoing commercial relationship looking to terminate it and sue/countersue for damages, in which the principals could not even stand to be in the same room at the outset, but through patience and exploring the other's perspective, came together to negotiate a modified relationship; a mediation in a highly-charged dispute between a dozen residents of large-scale low income housing, representing hundreds more residents, and the owner/operator of the housing, in which the parties eventually were able to identify not only their monetary interests but also their non-monetary needs and thus to resolve multiple claims in an agreement that also was forward-looking; and mediation of a dispute arising from a services contract between hospitality providers in which reality testing, risk analysis, and their candid reckoning of potential claims and defenses resulted in their maintaining the status quo with modifications rather than engage in costly and uncertain litigation.
Have you noticed any trends or shifts in the use of mediation, the types of disputes, or in parties’ expectations in recent years?
I have seen several trends in recent years. Overall, there seems to be greater interest in mediation as a dispute resolution tool, as more counsel, parties, and judges become familiar with and champion the process and its potential advantages. The AAA's palpable commitment to expanding mediation services is welcome and energizing for many stakeholders. The pandemic drove the mechanics of mediation substantially online, with great success and savings in my experience, and now a tailored balance has evolved between in-person and remote proceedings, driven by participants' needs, and not the mediator's convenience. The relevance and importance of pre-mediation conferences and conversations increasingly is recognized for how they may enhance ultimate prospects, as is the importance of party and counsel preparation. At the main mediation session itself, the use of joint sessions beyond the mediator's introduction of ground rules continues to atrophy, which can be a missed opportunity and lead to undue rush to distributive bargaining in the separate caucus sessions with each party. I test the waters in each case on this trend and have had some success. Parties' expectations are less a matter of such trends, and more a function of meaningful preparation for the mediation, explanation of the process, and exploration of the goals. I offer to support such orientation and counsel's efforts, with some success.
Which skills or qualities do you believe are most essential for a successful mediator, and how have you cultivated them?
A "successful" mediator may appear to be so due to a high rate of settled matters, without necessarily being a great or even a very good mediator. For me, the essential skills and qualities that make a good or great mediator are several, working in tandem. These include the ability to listen and also to hear, patience with and respect for others, empathy for the very human toll of conflict and parties' circumstances, the ability to move beyond passive listening to active listening through mediator questioning and reality testing in order to tease out parties' interests and needs rather than their reliance on distributive or positional bargaining, a sincere interest in people, their lives and their "story," curiosity about (and willingness to dig into) the facts, business or relationship context of the dispute, cultural sensitivity toward others and self-awareness of bias, a sense of humor especially about oneself, a calm demeanor and calming disposition and the ability to respect while managing emotional expression by participants, the ability to read a room, people, and psychological influences, the ability to manage the overall process and efficiently move it forward while respecting party need to be heard, adherence to the highest ethical standards for mediators and respect for the principle of self-determination underlying mediation practice, and engagement in serious professional mediator training and mastery of key skills, tools, and techniques. In addition to these skills and qualities, I would add experience, because, as with most things in life, we get better at developing and applying skills with practice and experience. I have undertaken hundreds of hours of mediator training and continuing legal education by experts whom I respect, and I myself have spoken frequently at professional conferences, programs, and advanced trainings regarding skills and strategies for effective and successful mediation for mediators, counsel, and parties. In addition, I have served as mediator in more than 200 cases, after having represented clients in dozens of significant mediations while in practice, and I have served as an arbitrator in another 100 cases, all of which experience I bring with me into every new mediation matter, just as I bring along my experience and judgment in litigating and resolving a wide swath of disputes over 40+ years. All of that said, there is no substitute for being yourself and being genuine in your interaction with others. Being yourself, being genuinely interested, and being comfortable with people enables a trained and experienced mediator to attract confidence, rapport, and respect from others and to break through walls that may obstruct a potential solution. In all of these considerations, a mediator cannot and should not try to fake it. The old adage of good trial lawyers holds true here as well: show, don't tell as to the qualities noted above, and a mediator is on the path to success.
Outside of your professional work, what activities, causes, or passions are important to you?
I wish I could describe an exotic passion or idiosyncratic pursuit, but I am not that interesting. Meanwhile, it is enough for me that the New York Knicks won the 2025-26 NBA Championship after a 53-year drought, uniting New Yorkers of all ages and from all walks of life that was its own delight. More seriously, I am Co-Editor-in-Chief of "New York Dispute Resolution Lawyer," the distinguished journal of the New York State Bar Association's Dispute Resolution Section, where we take great pride in promoting best practices and innovative thinking in ADR, important legal developments, and the foundational role of the rule of law in our society.