The selection of the mediator is an important decision in litigation, if of course your goal is to settle the action short of going to trial. So what decisive factors come into play in selecting the individual who you expect to effectively communicate your position to the other side and help you get the case resolved? Having participated in over 100 mediations during my career, I believe the following considerations, in no particular order, come to mind:
1. The mediator’s experience in the specific area of law involved in your case. Let’s face it, no one wants to spend significant time, either in a brief or in the initial session of a mediation, explaining the law to the mediator. Rather, you want time spent getting to the applicability of your specific facts to the law, so that the mediation can be productive. Of course, the mediator is a perfect “sounding board” for you to test how your facts may play out, especially if you are attempting to change or alter the law on the subject.
2. The mediator’s experience in litigating your particular type of case. Equally important is the mediator’s own personal experience in handling your case, either from the plaintiff or defense perspective. While no mediator has a crystal ball to consult on how your jury will ultimately decide your case, a mediator who can share his/her experiences is akin to a very inexpensive mock jury. The mediator who likewise stays up to date on verdicts in the community can provide critical feedback to you in assessing the strengths and weaknesses of your case.
3. Availability. Obviously, you expect your mediator to give you 100% of his/her attention during the mediation, but what about before and after the mediation? I have always been impressed with pre-mediation conferences conducted by mediators, that allow them to become familiar with the issues to be addressed and any nuances presented in your case, which allows them to hit the ground running once the actual mediation starts. Likewise, if the case does not settle at the scheduled session, your mediator should continue to follow up with both sides, working toward the resolution you are seeking.
4. The mediator’s personality, especially in consideration of your client’s. You may have worked with the gruff, strong-language mediator in the past, and perhaps he/she is the one you want to select when your client shares the same attributes, or you believe that is the type of personality you need to talk some sense into your opponent. But we all know what a disaster that can be if your client is a meek, soft spoken individual, who will be immediately turned off by the process if the mediator drops an “F-bomb” during introductions! A mediator who is personable and can read the room can go a long way in fostering a settlement that your client can accept.
5. Fairness in the process. We all know the old saying, the sign of a great settlement is that everyone goes home unhappy, right? While that may be the reality, I do believe it’s important to distinguish between fairness and unhappiness. You want your mediator to be fair in the sense of allowing you and your client ample time to present your case, discuss your issues, and address what is important. Afterall, for your client, this may he his or her “day in court.” Fairness means listening, analyzing, and providing helpful feedback, which sometimes may not be what your client wants to hear, but can be incredibly valuable. Unhappiness with the result is not something you, or the mediator, can always control, but in my experience, when the client leaves the mediation believing it was fair and he or she was heard, that goes a long way in diminishing the perception of unhappiness.
The list above is not exhaustive but provides some insight in what I have found important in mediating cases over the past 30 years. The selection of the mediator is obviously the first crucial step in getting the result you seek at mediation.
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