You’re about to go to mediation; either a court has sent you there, a clause in a contract requires you to go, or you simply have a dispute with another party and you both choose — wisely, I think — to try mediation to resolve it. One of the advantages of mediation is the ability to choose your mediator, but how does one go about that?
What Type of Mediator Do You Want?
The simple answer is an effective mediator. The tougher question: What makes for an effective mediator?
Let’s assume that the mediators you will be choosing from have all received training and are qualified. There are many to choose from and, oftentimes, biographies of mediators are available from providers and on-court panel websites. See, e.g. www.nycourts.gov/courts/comdiv/ny/ADR_overview.shtml; www.adr.org. That will tell you a little. If you are given a list of names to choose from, your attorney can reach out to his colleagues to see if they are familiar with anyone you are considering. Any information you receive from people who have worked with a prospective mediator can be very helpful. But before going through this exercise, let me suggest the following: consider the type of mediator that you think would be right for your case; not whether he or she is likely to favor you, but because the mediator has the knowledge, temperament, subject matter expertise and an approach that is suitable for your dispute.
All disputes are unique, in one respect or another. Certainly, the parties are different from dispute to dispute. So it follows that not every mediator would be suitable for every case. So, ask yourself:
•Does your case require subject matter expertise on the part of the mediator? It is generally agreed that skill in the mediation process is at least as important as specific subject matter knowledge in helping to resolve a case. While a complicated dispute over, e.g. a patent, may require a mediator with applicable experience, not all experts in patents have any training or experience mediating such a dispute. Similarly, not all skilled mediators may have the expertise in patent law that may be necessary to help you resolve your dispute. Pick one who has both. They are out there.
•Do you believe that a mediator with a particular professional background, set of life experiences, or language skills, would be particularly helpful in helping you resolve your dispute? The ability to communicate is essential to a successful mediation. Pick a mediator that you feel confident will understand the dispute, its background, and who can communicate effectively with you and with the other party.
•Is the mediator’s approach more facilitative than directive; more directive than facilitative; or a thoughtful blend of each? Participant self-determination is an important foundation of mediation. Therefore, in its purest form, a mediator is facilitative, helping the parties arrive at their own resolution — be it a settlement or an impasse. However, sometimes the parties need a little “push,” and they may actually want and expect one. They want a mediator who is knowledgeable about the issues and who can ask direct and probing questions about the key factual and legal issues in dispute. This is part of “reality testing,” employed by most mediators to help the parties identify their real needs and interests (and those of their adversaries), in addition to appreciating the relative strengths and weaknesses of their case. While more than purely facilitative, this is very different than telling a party that an argument is right or wrong, winning, or losing; something a mediator should not do.
These are only some of the questions you might have. Other obvious ones are fees and scheduling. It is entirely proper for the parties — usually, their attorneys, if represented — to reach out to a mediator they are considering hiring to ask questions about their expertise, background, experience, style, fees, and availability. Do your homework.
An effective mediator can go a long way to help parties resolve, or, at the very least, narrow the issues in a dispute. An ineffective mediator can accomplish little other than wasting the parties’ time and money. Mediation is an opportunity to arrive at a settlement reasonably acceptable to you and at far less cost — and in far less time — than if you had to litigate the case all the way to a verdict. Take that opportunity, and do all that you can to try and ensure that it will be successful.