Expert Commentary

How To Pick a Mediator, 2005

It's the litigator's worst mediation nightmare. As you leave the mediator's office, your client says, "That mediator is a real jerk. Why did you ever pick him?" The unspoken part of the conversation, though, is even worse. That's because you fear your client is thinking, "YOU picked that lousy mediator. Why did I ever pick YOU?"


Mediation
March 2005

To your client, your choice of a mediator reflects on you every bit as much as your choice of experts, jury consultants, or other professionals. So you had better pick right. But how? Conventional wisdom holds that you ought to ask prospective mediators about their personalities and past professional work. But painful experiences show that this hardly distinguishes competence as a mediator.

So, let's get outside the box. Here are 10 questions for prospective mediators and some likely responses. The mediators with the better answers are more likely to have your clients—and you—delighted with both the process and the result. And that's in everybody's interest. Try out this new "Top 10" list and see what happens.

1. What Is the Purpose of the Mediation?

The best answers will focus on the client's ability to make smart decisions at day's end about whether or not to settle the case, and "settlement if at all reasonably possible." The purpose of the mediation is to work hard to develop options for the client, to evaluate those options, and then to choose among them. To make the best decisions as to whether or not to settle, the client needs the best information possible. So the typical mediation will include an exchange of information in one form or another, and then a negotiation.

The negotiation will generally involve the amount of money necessary to obtain a release, and may also include some exploration of broadening the scope of the discussion to include other interests, concerns, or considerations. When people have reached the point at which they appear unwilling to go any further, the client then weighs the pluses and minuses of the best-available settlement option against the pluses and minuses of the litigation option, and decides. The ability to make that decision as well as possible is mediation's true goal. Settlements will usually result.

Worse answers will stress some variant of "settlement for settlement's sake" or "settlement at all costs." Beware of these answers. They are far different than "settlement if at all reasonably possible." The mediator who is attached to settlement at all costs may press you for unprincipled concessions just to get a deal done. If you capitulate to settle, your client will eventually blame you for allowing yourself to be bullied. If you stay stubborn to force the other side to be the ones who capitulate, it will probably backfire. Neither side will move, and a possible settlement may be lost.

2. As Mediator, Who Is Your Client?

The best answers will focus on you and your own clients. The best mediators presume that lawyers come to mediations well prepared and put their clients' interests ahead of their own. Sometimes, though, lawyers need a mediator's help. Often, this includes finding a graceful way to break bad news to one's clients or helping to bring unrealistic expectations down to Planet Earth. A mediator thus benefits your client enormously, albeit indirectly, by viewing you—the lawyer—as her "client," and by helping you do the best job possible advising your own clients of their true situations.

Worse answers will be along the lines of, "My client is the deal." As with the mediator who is unduly attached to settlement for settlement's sake, this mediator will pressure you for unprincipled compromises just to get a deal done, sooner or later earning you the ire of your client if you capitulate and losing possible settlements if you don't.

3. Will You Ask for My Bottom Line?

The best mediators will not ask for your bottom line, at least not early in the process. If a mediator asks for your bottom line early on, respectfully evade the question. If you disclose your bottom line early on, you deprive yourself of the opportunity to do any better in the negotiation. After all, if the mediator knows what you will pay (or take), why should the mediator work any harder than necessary so that you can pay less (or take more)?

If you answer the question with an exaggerated number, you increase the chance that the mediator will declare an impasse because the parties "seem too far apart," and another possible settlement may be lost. On the other hand, late in the day, when an insurance adjuster expresses a willingness to call a superior for additional authority, it may be only fair to tell that adjuster how much more it will really take to get the deal done.

4. Will You Ask To Speak to My Client Outside My Presence?

The best mediators generally will not ask to speak to your clients outside your presence. Your clients are, after all, your clients, not the mediator's clients. Mediators do not have the right to undermine your relationship with them by going behind your back.

If a mediator has questions or concerns about the advice you are giving your client, the mediator should ask to speak to you away from your client, not the other way around. You might have a blind spot, and the mediator does you a favor by bringing it to your attention. Or the mediator might not fully understand the facts and circumstances on which you base your views.

5. What Is Your Mediation Format?

The best mediators are not wedded to a one-size-fits-all format, and do not, for example, either require or dispense with opening joint sessions on a routine basis. Look for a mediator who will work with you and the other lawyers involved to customize a format to meet everyone's needs. Beware of the mediator who has "Their Way."

6. What Is Your Mediation Style?

Similarly, the best mediators are flexible, and will use different styles at different times and with different people, as appropriate. The best lawyers do not use a single "style" of cross-examination with every witness in every case. So the best mediators do not use a single "style" either.

7. Will You Talk to Me before the Mediation?

To determine the format and styles that are most likely to be effective, the best mediators will talk to you in advance. There are often some considerations that are too sensitive to put into writing. Those are the considerations the mediator most needs to know to help resolve the disagreement. So if a mediator does not call you before the mediation, you might want to call the mediator.

Mediators are not arbitrators, so the prohibition on ex parte communications does not apply. If you are going to call the mediator, you might want to tell opposing counsel that you are going to do so, and give opposing counsel the chance to call the mediator as well.

8. Will You Follow Up If the Case Doesn't Settle?

The best mediators will follow up by phone calls or otherwise to see whether anything has changed and a settlement has become reasonably possible. Generally, mediators will not charge for short or unsolicited phone calls, but may charge if the additional work becomes material. Mediators should be up-front about when they are charging and when they are not.

9. Are There Administrative Fees or Other "Hidden Costs"?

Different mediators have different ways of billing. Make sure that you know your mediator's billing practices in advance.

10. Does the Mediator Provide a Settlement Agreement?

Settlement agreements include many terms that may benefit one side more than the other. The scope of a release may be broad or narrow. A confidentiality provision may be onerous, or absent altogether. Even something as basic as a waiver of unknown claims can, in some cases, be a bone of contention.

If a mediator provides "their" form of settlement agreement, and it contains terms that you don't like, it is difficult to negotiate anything different. After all, those terms have the mediator's imprimatur of propriety. So an ounce of prevention is worth a pound of cure. Prepare your own form of settlement agreement. If you have a template, send it to opposing counsel before the mediation. Try to work out your differences as to form in advance.

Conclusion

Good mediators are committed to helping get cases settled whenever reasonably possible, but are not attached to settlement for settlement's sake. Settlement or not, though, lawyers and clients should leave the mediator's office feeling it was time and money well spent, and neither should feel they were embarrassed in the eyes of the other. These 10 questions will help you get the information that will allow you to select the mediators best able to get the job done.


Jeff Kichaven is president of the Southern California Mediation Association, an adjunct professor at Pepperdine University School of Law, and a Fellow of the International Academy of Mediators. The views expressed in this article are his own.


Opinions expressed in Expert Commentary articles are those of the author and are not necessarily held by the author's employer or IRMI. Expert Commentary articles and other IRMI Online content do not purport to provide legal, accounting, or other professional advice or opinion. If such advice is needed, consult with your attorney, accountant, or other qualified adviser.

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