What makes one mediator successful and another one just so-so? It could include the mediator’s understanding of complex legal issues or his or her patience or creativity. But often it is a mediator’s ability to seize an opportunity to push through a roadblock. Let’s contrast two cases:
Case 1: The parties agreed to mediate their housing discrimination case after summary judgment was denied. The trial budget looked daunting to defendant, and the thought of starting trial just before Christmas brought on concerns about a jury’s Yuletide generosity.Plaintiff’s damages were speculative, but defendant feared the single mother would come across sympathetically.
The parties agreed on a mediator with plaintiff-side housing discrimination experience but who had previously been a defense attorney. The defendant felt the mediator’s work on the plaintiff side could help the plaintiff realistically understand her trial risks.
The mediator requested confidential mediation statements in advance. Based on the relationship of the parties up to that time, everyone agreed to dispense with opening statements with all parties in one room. The mediator quickly assessed the dynamics and the parties’ appetite for trial. He caucused, sometimes with just each side, sometimes with just the lawyers, and sometimes with just each client. He learned that, for business reasons, the defendant was motivated to get the cost of the case off his company’s books before the end of that calendar year, and he assumed the plaintiff’s attorney would probably also like to book any fees by December 31. His experience in comparable cases lent credibility to the discussions about dollars, yet, the parties went back and forth without much progress.
As the afternoon wore on, snow was falling fast and hard, making the parties – all of whom lived out of town – nervous about driving home in the dark. The mediator, feeling their angst, pragmatically helped them factor in the added costs of a follow-up mediation session, helping break the logjam of eight hours of caucusing and moving them toward an agreement.
Case 2: In this personal injury case mediated by an experienced litigator, the mediator unilaterally decided to dispense with opening statements, because he felt the parties were too adversarial. During the first round of caucuses, the mediator leaned on the lawyers to confidentially disclose their drop-dead numbers. This had the effect of making each party feel their case was not important and that they were not heard.
The other concern expressed by the litigants was that this mediator seemed more interested in making sure everyone knew how smart and experienced he was than in letting them express what stood in the way of resolution. He attempted to use his experience to steer the parties toward a recommendation he felt was right, instead of allowing them to weigh various economic and non-economic components that were palatable to them. Although the parties ultimately settled the case on their own months later, neither felt that the mediation did much to advance their goals.
So how do you select the best mediator?
- Choose someone whose schedule communicates availability and flexibility.
- Make sure your mediator is assertive enough to actively guide or help reframe a discussion if the parties lose their way.
- Research your mediator options with input from colleagues.
- Do not rule someone out based on an assumption that his or her practice biases them toward one side or the other. A mediator versed in the flip side of your case may help opponents appreciate risks in a way that perhaps their counsel have been unable to do.
- Choose a mediator who will put the parties’ goals first.