Alternative Dispute Resolution
Dec. 1, 2023
How to select a mediator in three easy steps
It’s relatively easy for lawyers to determine the level of a prospective mediator’s knowledge of the territory. But be careful not to let the quest for substantive expertise go too far. I have seen inquiries on listservs along the lines of “Do you know a mediator with expertise regarding red-crested cockateels from Brazil?” Seriously.
The purpose of this article is to help lawyers do a better job of selecting mediators.
There’s no one mediator who is best for every case. So, here’s a three-step system to select your next mediator. You should consider the mediator’s:
• Subject-Matter Expertise
• Mediation Skill
A mediator’s effectiveness depends on far more than the mediator’s paper credentials. Personality is important, too.
In selecting a mediator, ask yourself whether the mediator will be able to get on wavelength, establish rapport, and earn trust with everyone participating in the mediation – you, your clients, and your counterparties alike. At day’s end, lawyers often enlist a mediator’s help to convince their clients to pay a little more or take a little less to get all the other benefits of settlement. There’s little worse than seeking that aid from a mediator whom your client finds to be a jerk.
To determine personality fit, you need to do more than look at resumes or ask colleagues whether their experiences with a particular mediator have been good or bad. Your colleagues’ cases, clients, and counterparties were different from yours.
My advice? Take your prospective mediator out for a test drive, kick the tires, look under the hood. That could mean a video chat, a phone call, or – if you’re in the same city – a cup of tea. The best mediators welcome these inquiries, and are more than happy to spend the time it takes to get each other’s vibe.
Subject Matter Expertise
Here, lawyers tend to do their inquiries thoroughly – perhaps too thoroughly.
It’s true, mediators generally perform better when they come in with some understanding of the environment in which a particular dispute arises. As the traveling salesmen concluded in the opening scene of Broadway’s The Music Man, “Ya Gotta Know the Territory.”
And, it’s relatively easy for lawyers to determine the level of a prospective mediator’s knowledge of the territory. Here, paper credentials generally tell the tale. What were the mediator’s previous jobs? Does the mediator speak, write, and attend conferences in a particular field of law? Is the mediator active in relevant professional associations? The answers to these questions will tell you whether a mediator has basic subject matter knowledge. If a mediator meets that threshold, the mediator will likely be able to take a good set of mediation briefs, understand the issues, participate intelligently in the conversation on the merits, and offer informed opinions as appropriate.
But be careful not to let the quest for substantive expertise go too far. I have seen inquiries on listservs along the lines of “Do you know a mediator with expertise regarding red-crested cockateels from Brazil?” Seriously. Yet even if you could find such a mediator, your case involves different clients and different lawyers on a different day. If your mediator has basic subject matter knowledge of the key issues in the dispute – here, perhaps the not-so-esoteric field of “contracts” – it’s probably enough. Most cases, no matter how seemingly arcane, boil down to basic principles of law and equity.
The mediator’s real stock-in-trade is expertise in conflict and how to resolve it. In litigated cases, this is not so much expertise in torts, trusts, or trademarks as it is expertise in Civil Procedure and Evidence – the language common to all litigation. Civ Pro and Evidence explain most of the disjunction between clients’ beliefs that they are entirely in the right and the fact that they might lose anyway, and also explain much of the expense, delay, and hassle clients must suffer along the way. These are the considerations lawyers most commonly need to help their clients to appreciate, and most every established, quality, “above-the-line” mediator knows Civ Pro and Evidence backwards and forwards. Looking to distinguish mediators on this basis is not likely to yield distinctions which make much of a difference.
Here’s the bottom line: Chances are the reason the case has not yet settled is not because the sides have devoted insufficient subject matter expertise to the situation. Lawyers, experts, and indeed your clients bring that to the table in abundance. What’s missing is likely something different – quality communication and decision-making processes. Those are exactly what a skilled mediator can provide. So, let’s examine how to discover whether a mediator is truly skilled.
Mediation skill is hard to measure. Can you really tell how good someone is at listening? No, the skills are soft, measuring them is hard, and because “people don’t measure what they value, they value what they can measure,” mediation skill is historically not properly valued.
So, let’s try something new, something easier to measure and therefore more likely to be valued as an index of mediation skill: Is your proposed mediator ready, willing, and able to manage direct communication between the sides, not just caucusing and shuttle diplomacy?
Yes, direct communication between the sides. Sometimes it’s conversations between the lawyers, sometimes it’s the “Joint Session” including lawyers and their clients alike.
I know, I know, the Joint Session has fallen out of favor, replaced by a default to the caucus-only, shuttle-diplomacy approach. But while caucusing and shuttle-diplomacy surely have their place, and skilled mediators must have these tools at their disposal, it’s a mistake to rely on them exclusively. When managed properly, direct communication can provide lawyers with significant benefits and promote progress in negotiations.
There are at least three benefits to lawyers when they communicate directly with counterparties and do not rely solely on the mediator to do their talking for them:
• Conviction. A mediator cannot convey information with the same conviction as you, the party’s own lawyer. You have the duty of undivided loyalty to your client, the obligation of zealous advocacy, the benefit of months or years of familiarity with the case. Who is in the best position to deliver your message with conviction, passion, and resolve?
• Confidentiality. Lawyers generally give mediators a mix of confidential information and information which can be shared. The line between the two is often blurry, and can change depending on which way a conversation goes. Who is best equipped to decide whether, when, and how to maintain that line as a conversation progresses?
• Questions. When a mediator delivers your message for you, pray that nobody asks the mediator a question. Who is most likely to expect the counterpart’s questions, and to know the best way to answer them?
The correct answer to all three questions is you, the party’s lawyer, not the mediator.
And, in terms of promoting progress in negotiations, the benefits of direct communication are similarly obvious.
After a Joint Session, the mediator can adjourn to a caucus and can ask a lawyer, in the presence of the client: “Darrow, you heard Bryan make three points on Issue X. Let’s talk about them. Which of them did you find most concerning?”
Darrow and the mediator can then have a conversation about what Bryan had to say. Darrow may even acknowledge some concerns. This is well-designed to impact the client’s thinking, and lead the client to consider settlement possibilities the client had not previously considered, or at least not previously considered seriously.
By contrast, consider how much less well-designed it seems when the caucus takes place without the benefit of the preceding Joint Session: “Darrow, you know Bryan has three points on Issue X. Let me describe them as presented in Bryan’s mediation brief – Point One, Point Two, Point Three. What are your responses?”
When the mediator is constrained to speak in Bryan’s voice, the mediator becomes less the narrator and more the sponsor of Bryan’s points. It looks less like a conversation, more like an argument. And let me tell you, in the eyes of a client, no mediator has ever won an argument with a lawyer. Ever. That’s because clients understand that their lawyer is 100% on their side, and the mediator is not. When the mediator leaves the room, the Darrows of the world say to their clients, “Don’t listen to the mediator. Listen to me. I’m here to fight for you. The mediator is just here to squeeze out a deal.” The opportunity to impact the client’s thinking and generate progress toward settlement is wasted.
Underlying all this is the need for the mediator to manage the process properly. A skilled mediator will not plunk everyone in a room for a Joint Session and ask the lawyers to bring it on. That’s so 1990s! And that approach led to the Joint Session’s demise. No, a skilled mediator will read the briefs, talk to the lawyers, and set a narrow, tailored, focused agenda for the Joint Session. That agenda will consist of issues the parties can discuss in each other’s presence without excessive risk of conflagration, and then take into caucus for the kind of issue-oriented conversation described above.
Of course, some cases present circumstances which dictate a caucus-only, shuttle-diplomacy approach. When mediation skill is applied, though, the number of those cases is far smaller than you might think.
A mediator who refuses to consider direct communication might be compared to a litigator who refuses to use available tools of the trade. Suppose a litigator said, “I never make Motions for Summary Judgment. I never oppose them, either. Courts never grant them anyway, and if one somehow does get granted, it’ll be reversed on appeal.” Would anyone ever hire such a litigator? The question answers itself. Professionals – be they mediators or lawyers – must be ready, willing, and able to use all available tools when the time is right.
To find out whether your prospective mediator can manage direct communication, just ask.
Many candidates who lack this basic skill will freely admit it.
There you have it. A new litmus test for mediation skill. Now you can ask and answer the three questions which count: Does the mediator have the right personality for the people in this case?
Does the mediator have threshold subject matter knowledge to participate intelligently in the conversation about the merits?
Does the mediator have sufficient skill to use all tools available, including direct communication and Joint Sessions where appropriate?
If you ask these questions, you’ll pick better mediators, have better mediation experiences, and, with a little luck, get more cases settled and have happier clients.