All Mediators Are Not Created Equal
By Lee Jay Berman
If a mediation is going to have a chance at success, perhaps the most important decision is who will sit in the neutral chair at the head of the table. From case to case, that decision will vary. Attorneys owe it to their clients to invest the time in investigating, strategizing and selecting the right mediator for each case. In a time where we have retired judges, litigators, transactional attorneys, so called "recovering litigators", and professional mediators available, and when more mediators are specializing in particular areas of practice, here are 14 tips on the best ways to select the right mediator and increase your chances for a successful mediation.
The old days of each side picking three and scratching two from the other's list, a process that comes from the adversarial arbitration process, is out. Even more so than arbitrators, mediators must be selected on a consensus basis, rather than a least objectionable or lowest-common-denominator basis. Mediation has a greater chance of settling the case if all parties believe in the mediator's reputation, personality and qualifications.
Just because the "other side" proposed a mediator that they have worked with before, that is no reason to "ding" that mediator. Consider three things. First, the mediator has no ability to make you agree to anything you don't want to, nor can they coerce or pressure you or your client. Second, if the other attorney is proposing a mediator they are probably doing so because they feel that mediator has the ability to settle the case, which means finding mutually agreeable terms for settlement. Third, if you are concerned that your opposing counsel may have a working relationship with the mediator that seems too close for comfort, ask the mediator some questions. Perhaps it is important in reaching a resolution that your opposing counsel feel that he or she can trust the mediator, and that the mediator has the ability to reach that attorney (or client) in a way that can be more persuasive than another mediator who is unfamiliar and lacks the rapport and credibility.
Consider the mediator's training in resolving conflict. While mediation is definitely an art form more than a science, there are many levels of tangible skills that mediators can study in order to become expert negotiators, facilitators and closers. Some mediators on court panels have merely completed a single 25-hour mediation course, while others make mediation their full-time career and have studied for many hundreds of hours with the best instructors in the world. Mediators often refer to their mediation skills as tools in their tool box or the bullets in their gun. My website says, "If the only tool you have is a hammer, you tend to treat most problems as nails." The difference in the level of actual mediation training your mediator has (or how many tools they have to pull out of their tool box and use) may be just the difference you need to get your particular case settled. After all, if settling the case was easy to do, you wouldn't need a mediator at all!
Consider the mediator's tenacity. Lately experienced mediators are being asked to do a lot of second mediations for cases that went first to an ineffective mediator. All too often the attorneys will say that the mediator heard the initial dollar amounts that each side was looking to settle for and gave up too easily, or didn't have the skills or tenacity to see the case through to resolution. A mediator can only keep going if they have the skills to keep trying different things, and if they have what some have called "an iron rear end" and are willing to sit and keep working for as long as it takes to get a case resolved. That tenacity, or resolve to resolve a case, is one of the most important features to look for in evaluating a mediator, and in interviewing other counsel who have worked with that mediator in the past.
Consider the other attorney(s) in the case and their clients. Ask opposing counsel, or try to size up the type of mediator to which they would best respond. Some cases (and some opposing counsel) require an authoritative voice of a retired judge or litigator with decades of experience. Others may respond better to a persuasive, personable mediator who reaches people well and can see the big picture. Some cases require a macho authority figure, while others may do better with a more sensitive touch. It is important to consider variables such as these in each case. No case will be like any other, since the personalities at the table will be different and will respond to different types of mediators.
You will also need to consider your relationship with opposing counsel and whether you want your mediator to provide more of a facilitated negotiation or an evaluative appraisal of the case.
Consider your client's state of mind. If they are highly emotional about the case, they will benefit (as will you) from a mediator who can handle emotional parties and help move them to a place where they can make a decision, gently guiding the case to a smooth settlement. If they are stubborn and intransigent, they may need logic and tenacious persuading. If they are weak decision-makers or are unsure about the fair value of their case, they may need the authority of a retired judge or seasoned litigator.
Consider your own strengths and weaknesses. This may be the hardest part, but it's critical to know yourself with clarity. For example, if you have a strong, authoritative presence, you may benefit from a mediator who has a softer touch to complement you. If you tend to be more left-brained, or a more logical or linear thinker, you may want a mediator who is more right-brained, more emotionally attuned, and perhaps creative. If you have a client control problem, you may want a mediator whose style is more firm and directive.
Consider the timing of the case. If your case is ordered to mediation by a date that is too early in the case, and you are unable to persuade the judge of this, then you will want to select a tenacious mediator who is dedicated to following the case through the litigation process. Experienced mediators know that sometimes, the first day of mediation is only the start of the mediation process, and that additional key discovery may be required before a final settlement can be reached. In these cases, a mediator who will take the lead in facilitating the discovery process and working with counsel to schedule a follow-up mediation session will be an asset. Sometimes it comes down to keeping the case on a settlement track with a mediation mindset, rather than letting all guns start to fire after one premature mediation session. For this, you will want a mediator who is a real believer in peaceful resolutions and in not letting litigation get out of control unnecessarily. This could range from a no-nonsense retired judge to a former general counsel to a non-attorney mediator with business and economic sense.
Consider the subject matter. It is not imperative, but it is helpful to have a mediator who understands the nature of the dispute. If the dispute is a dissolution of a family business, it can be helpful to have a mediator who understands partnership and corporate law, business law and contract law. It could also be beneficial to have a mediator who is familiar with the workings of the particular industry in which the family operates their business. It may be even more beneficial to have a mediator who specializes in, or understands the unique dynamics of family businesses. The important thing to consider in selecting the mediator is that they are familiar with what it takes to discuss the issues and to reach a resolution. It is not enough for the mediator to understand the legal issues; they must understand how to relate enough to the parties and their counsel to bring the parties to a mutually agreeable resolution.
Consider the difficulty level of the case. Many smaller cases can be less complex, such as a simple collection or personal injury case that most mediators might be able to resolve. Other cases are the type that only a small percentage of mediators can settle them. For example, a wrongful death case may include legal issues, insurance coverage issues, medical issues, deep emotional loss issues, and structured settlement issues, and will require a very experienced mediator with lots of tools and skills. You will benefit by trying to match the skill level of the mediator to the difficulty level of the case. Some attorneys will look at a very difficult case and assume that any mediation will fail, so they will pay little attention to the selection of mediator. Instead, try hiring a highly skilled mediator and give the mediation process a chance to settle the case.
Ask colleagues, being sure to ask questions that will give you useful information such as what has been outlined above. Ask specific questions about each of these points, rather than simply asking if your colleague liked the mediator or thought he or she was competent. Even less informative is asking whether the case settled, since there are so many variables involved in whether a case settles or not, this may be the worst indicator of the mediator's skill and effectiveness.
Because such a large volume of cases are going into mediation as a result of a court order, you must examine the court program rules and your ability to select a mediator of your choosing within the court's program. Even though a case may be ordered to the mediation program, you may still have the right to pick your mediator. If the court doesn't assign the mediator to a case, you should request resume information on the potential mediators. Many California courts have followed Santa Barbara Superior Court's successful Court Administered Dispute Resolution (CADRe) Program by listing the mediators and making their resumes available on the court's web site. Take the time to comb through these resumes for the qualities described above. Allowing the court to select the mediator for you when you have the ability to participate in that decision is doing your client a disservice.
Consider looking beyond the court program. Even when the court offers a list of "approved" mediators, that should not limit your ability to select and hire a mediator of your choosing. In a court program where the mediators are required to volunteer their time, many top mediators will not make themselves available to take more than one or two volunteer cases per month. In Los Angeles, for example, there is no reason to select a mediator from the court panel if you cannot find one with the qualifications you want. In that court, there is a second checkbox on the mediator selection form where the parties can designate a mediator of their choosing. Even if it costs each party a few hundred dollars in private costs, that choice may save them many thousands if the mediation is unsuccessful. What should be most important is actually settling the case. That is, after all, the only reason to begin the mediation process.
Finally, there is the list of things not to do. The dartboard approach is out. Coin flipping is shameless. So is the "pick an address label from this random list offered by the court" method. And picking the one with the biggest ads in the legal periodicals may not tell you enough, either. Often times, name recognition simply means a mediator markets well, but does not necessarily imply competence or appropriateness for your case. Letting opposing counsel select without you asking any questions of them is paramount to telling them you are not planning on taking the mediation process seriously and do not care to put the effort into it.
The mediator you select may be the most important decision you make regarding the mediation. Regardless of whether the mediation is ordered or voluntary, take the time to read through resumes, ask colleagues, and do the appropriate research, taking responsibility for making it succeed. After all, there are few experiences more frustrating than putting several hours of hard work into a mediation, only to have it fail. Make the decision wisely and settle your case!
**Also available in PDF.