PICKING A MEDIATOR WITHOUT DARTS
Ninety-five percent of all cases settle, and only five percent go to trial but attorneys put 95% of their efforts into the litigation and throw a dart to pick a mediator. Why not make the mediation the best it can be by picking the best mediator for the job?
There are a lot of people who are mediators: retired judges, litigators, transactional attorneys, “recovering litigators,” professional mediators, and feel-good facilitators. Choosing a mediator is more than going to a computer and throwing a dart at one of the top five. There are ways to select the right mediator and increase your chances for a successful mediation.
What is the case all about? Is it two businessmen fighting over money or ego? Is it two neighbors fighting over the fence or honor? Different disputes call for different types of mediations.
Mediation has a greater chance of settling the case if all parties believe in the mediator’s reputation, personality and qualifications. Therefore, a process that comes from the adversarial process, is out. Even more so than arbitrators, mediators must be selected on a consensus basis, rather than being another part of the litigation game.
Just because the “other side” proposed a mediator that they have worked with before, that is no reason to reject that mediator. In fact, that may be a good reason to choose him or her. Remember 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. 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 is better than throwing a dart. If you are concerned that your opposing counsel may have too close a relationship with the mediator, ask the mediator! He will be very unlikely to outright lie to you.
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 are ex-judges that are used to telling people how it is and forcing them to settle. This does not always work. “If the only tool you have is a hammer, you tend to treat most problems as nails.” The key issue is level of actual mediation training your mediator has (or how many tools they have to pull out of their tool box and use). Remember, if settling the case was easy to do, you wouldn’t need a mediator at all!
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.
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 such as an ex-judge.
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 issues to bring the parties to a mutually agreeable resolution. It is not imperative, but it is helpful to have a mediator who understands the nature of the dispute or has a background in the general area. 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. If the dispute is in a technical area then it could be beneficial to have a mediator who has a technical training. If there is a business rather than ad personal dispute, it is helpful to have a mediator that has been in business or ran a firm.
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, in a complex construction case, dozens of parties and carries may be involved, all with agendas and limits. You will benefit by trying to match the skill level of the mediator to the difficulty level of the case.
Since the case is much more likely to be resolved in mediation the selection of the mediator may be more important that the selection of the arbitrator, the judge or the jury! Take the time to make a wise choice or take dart throwing lessons.
David DiJulio, Esq.
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Consider the Subject Matter.
Consider Your Own Strengths and Weaknesses.
Consider Your Client’s State of Mind.
Consider the Mediator’s Training in Resolving Conflict.
Consider your Opponents Suggestions
Consider the Mediators Reputation.
Consider the Case.