Mediation Pro Tip: Choosing the Right Mediator

Selecting the best mediator for your case can have a big impact on whether or not you reach a settlement.  Here are some important considerations to keep in mind when choosing a mediator:

1.     Consider the temperaments of the decision makers. 

Mediation is an interpersonal process where human dynamics are often at the heart of the dispute, even in business cases.  When selecting a mediator, it's essential to carefully evaluate the temperaments and perspectives of all individuals attending the mediation, including yourself.  The mediator's approach should ideally resonate with the individuals who may pose the greatest obstacles to a settlement.  Mediators vary in their styles - some adopt a very direct and at times confrontational approach to prod parties toward settlement, while others employ a more subdued, cerebral approach.  Both styles can be highly effective in the right context.  A skilled mediator possesses the ability to adapt and connect with each participant in a manner that fosters comfort and trust, ultimately paving the way for a mutually acceptable settlement.

2.     Seek an active, evaluative, creative mediator. 

A mediator should be a proactive catalyst for the settlement process.  The right mediator adds value by offering insightful input and guidance to both counsel and the parties involved.  This guidance should steer the parties toward a mutually agreeable resolution. The ideal mediator rolls up their sleeves and dives deep into the contentious matters at hand, working closely with each side to explore the risks and potential outcomes of the dispute, resulting in a settlement that addresses the concerns of all parties involved. A mediator must also ensure that no party is subject to undue pressure or coercion that could jeopardize the core mediation principle of voluntary self-determination.

3.     Avoid “message carriers.” 

It's a sad reality that some mediators do little more than serve as conduits for exchanging offers between opposing sides.  In some cases, their involvement can inadvertently obstruct or, at the very least, protract the process of reaching a settlement.  Try to steer clear mediators who merely shuffle offers back and forth without actively engaging the parties on the substantive issues.

4.     Be cautious about former judges.

Some lawyers assume that a mediator who previously served as judge would always make the best mediator, but that can result in disappointment.  While former judges often engender respect for their experience and opinions, the required skill set for being an effective mediator is quite different than presiding over a courtroom.  Longtime judges are accustomed to making difficult decisions, issuing orders and then having them obeyed.  But in mediation, the mediator has no authority to decide any factual or legal issues.  Instead, mediators must convince the opposing sides that a settlement is in their best interest, helping them get comfortable with the idea of ending their dispute.  Mediators who push too hard to impose a settlement can cause resentment and increase the risk of rejection by one or more of the parties.

5.     Don’t get hung up on subject matter expertise.

While it is essential for a mediator to have a thorough understanding of the litigation process and the factual and legal issues in the case, keep in mind that you are hiring someone with the skills to bring the parties together on a settlement, not a co-counsel to litigate the case.  Judges, juries and arbitrators who will decide the outcome of the case if no settlement is reached will rarely have extensive experience in the specific or esoteric nuances of the facts and applicable law.  A mediator must be able to intelligently, effectively, and persuasively discuss the next steps, potential outcomes, and rationale for amicably resolving the case but does not necessarily need to have an extensive background litigating the precise matters at issue.

6.     Mediators should communicate before and (if necessary) after mediation.

I always reach out to counsel for each side privately a day or two prior to the mediation session, after I have completed my review of the pre-mediation submissions.  Those calls help me build rapport with the lawyers who will be attending the mediation and, most importantly, provide an opportunity to obtain valuable insight on the personalities and other sensitive issues that can be essential to resolving the case.  Likewise, if a case does not settle at mediation I follow up and stay in touch with counsel to continue assisting with securing a settlement as the case progresses.  You should expect that level of attention and involvement from a mediator.

 
Feel free to reach out to me at jim@baldingermediation.com or (561) 805-1545 if you’re ready to hire a mediator or if you’d like to discuss any of these issues.  You can also check my online calendar for available mediation dates anytime at www.baldingermediation.com/availability.