Six Factors to Consider When Choosing A Mediator
By Shannon H. Huber
1 Let the Other Side Choose
Although it sounds like a concession before even starting the mediation, allowing the adverse party to choose the mediator starts the mediation process off in the right direction.
First, it shows that you are willing to compromise and are truly interested in obtaining a settlement. Second, when the mediator is discussing your position with the other side and, hopefully, attempting to persuade them in your favor, the mediator already has credibility with the adverse party because they chose him or her as their mediator. Finally, while the purpose of mediation is to settle the case, it is important to remember that if you do not like the position taken by the mediator during the mediation, you do not have to settle the case. Mediation is not binding and there is no requirement to settle on the date of the mediation. If the mediator chosen by the other side is unsuccessful, other attempts, perhaps with a different mediator, may prove fruitful.
2 Mediator’s Background
Although it is customary to obtain CV’s and other biographical information of experts at trial, parties oftentimes fail to obtain the same information on the mediator. Depending on the type of case that it is to be mediated, it is important to obtain any information the mediator might have regarding his technical expertise and/or experience with the complexities of your case. It is also useful to know if the mediator previously practiced or is still practicing as a plaintiff and/or defense attorney and in which jurisdictions he or she primarily practices. Knowledge of the jurisdiction and the personalities involved, including the potential jury pool and judges, enables the mediator to be more persuasive. It is important to know if the mediator is versed in issues to be presented, i.e., construction, medical or appellate issues that may arise. A mediator who is aware and knowledgeable of such issues can only be an asset in obtaining a resolution of the case.
While it is true that many mediators have a specific formula for the mediation schedule, it is important that a mediator be open and flexible with regards to how mediations can best be handled on a case-by-case basis. A mediator who is open to suggestions and is willing to listen to the parties with regards to waiving opening presentations or even placement or location of the parties throughout an office is important and could in fact be the difference which leads to a successful mediation.
4 Follow Through
Many mediations do not settle their cases on their assigned mediation date. It is important to know, and to take into account, how often the mediator settles cases in the weeks or months after the initial mediation. Mediators who continue to call (and/or badger) both parties after the mediation date are usually very effective. These mediators show that they genuinely care about their success rate as mediators and do not believe their job only exists on the mediation date. (It should be noted that some mediators do not bill for these post-mediation calls, but if the length and amount of post-mediation follow-through is substantial, extra charges could apply).
5 Referrals, Referrals, Referrals
Referrals are a vital part of networking. Word of mouth is an excellent way to obtain suggestions for mediators who are most suited to a specific case. While the attorney handling the case might have some suggestions for a mediator, information learned at trade meetings, industry conferences and even from competitors can lead to names of mediators known by others in a specific field. It is important to keep your ears open at all times and ask others of favorable experiences they might have had with certain mediators.
Finally, the most important factor to consider when choosing a mediator is that all sides have some level of respect for the mediator. For example, if there is a member of the judiciary who retires and becomes a mediator, and you did not respect him while he was on the bench, it is unlikely that you will be open to his powers of persuasion when he is discussing your case. If, however, the mediator has been suggested by one of your respected peers, and comes with a good referral, (or better yet a few good referrals) mediation is more likely to be successful.