In earlier posts, we discussed the best time to mediate different types of employment or ERISA matters. Although some disagree, selecting a mediator to facilitate a settlement based on a meeting of the minds may be the most important part of the mediation process. Even though mediation is a party-driven process, the mediator’s knowledge, skill, experience, style and ability to handle the type of individuals involved in the dispute has a substantial impact on the resolution of the dispute. With apologies to Kyra Sedgwick, the goal is to find The Closer.
In most private mediations, the parties and their counsel select the mediator, and bear the burden of selecting an appropriate person to mediate the dispute. In making a selection, there are a number of issues the parties may want to consider.
Initially, consider the type of mediator the other side needs. Having a mediator acceptable to your opponent is among the more important factors in a successful resolution. Listening carefully to what the other side needs in a mediator can increase the opportunity for a successful resolution. Of course, it will not be helpful to agree on the mediator favored by the other side if the proposed mediator is not the kind of neutral your client needs.
So, you should also consider contacting and interviewing prospective mediators before picking the neutral. In talking to a potential neutral, you will want to explain the type of issues the parties face, and determine whether the mediator is or will be prepared to handle your needs and those of your opponent.
Among other things, you may want to ask a candidate the types of cases he or she mediates most often. Some mediators are generalists, while others focus on a particular area of law or particular types of dispute. Similarly, some neutrals are more familiar with particular industries and the issues associated with those industries.
In high stakes cases, parties may be inclined to select a neutral with a national reputation, who has a history of resolving high profile cases. No doubt, these mediators are skilled and are frequently an appropriate choice. Yet, the parties may also be well-served by selecting a neutral who specializes in a particular field, or one who both sides know and trust.
Although there is no substitute for first-hand experience with a mediator, at a minimum, contact someone who has had experience with the potential neutral. Colleagues, inside or outside counsel, and other neutrals are resources available for good reconnaissance. These resources are generally in a position to help you learn how the mediator approaches the mediation process, and whether the neutral employs a particular mediation style. Ask them about whether the mediator really focuses on getting cases resolved, and if he or she follows-up if a case does not resolve during the parties’ the first meeting. Be sure to ask how the mediator handles particular types of individuals or personalities, and how the mediator deals with the parties’ emotions.
Due diligence should not end there. Before making a selection, personally talk with the potential neutral. Among other things, ask the candidate what he or she does in advance, if anything, to help parties prepare for mediation, what the mediator finds helpful for the parties to submit in advance of the mediation, and in what areas does the candidate mediate most often.
There are also some practical questions you will want to get clear with the potential mediator, such as the name or names of potential references, and his or her customary billing practices. But most importantly, before committing to a particular neutral, make sure his or her availability matches up with the needs of the parties, so that the window of opportunity for resolving the case does not pass while the parties wait to get on the schedule of a high demand mediator.
After completing appropriate reconnaissance, you should know whether the potential mediator will have credibility with your opponent, with your client, and with you. That is, the mediator is the closer for your dispute. This closer is able to listen and bond with all participants; will be committed to resolving your dispute with patience and tenacity; is sufficiently creative and able to look beyond the constraints the parties perceive and apply available resources to sort out those barriers to resolution; and will help the parties close their case.