One of the great aspects of mediation is that it is characterized by choice. You can choose your mediator, logistics of the mediation, and whether or not to agree to a proposed resolution. So let’s start at the beginning: What qualifications should you consider in choosing a mediator?
Judicial Expertise In federal court, you may be entitled to a have a judge mediate your case. This is offered at no cost to your client. Judges are highly knowledgeable about the relevant law, and about how your case might fare in the courtroom. If you have issues with client control, the power and influence of the robe can be an immensely valuable tool to ensure your client has a realistic view of the likelihood of success.
It has been said that, “People don’t care how much you know, until they know how much you care.” If venting and being heard at length is important to your client, a federal court judge may have time limitations that could impact his ability to devote as much time to that particular aspect of mediation as your client might need. For that reason, you might wish to consider retaining a private mediator.
Judge Pro Tem In the state court system, lawyers voluntarily offer to serve as settlement conference judges. The advantage here again is that this is available at no cost. The disadvantage is that the pro tem assigned may not be a litigator, may not be familiar with the relevant area of law, and/or may not conduct settlement conferences frequently enough to bring strong conflict resolution expertise to the process.
Private Mediator The advantage here is that you can select a mediator whose background and expertise fits your case, or whose style or personality you prefer for your particular matter. You can also have more control over the date, time and location of the mediation. The disadvantage is the flipside of the judge mediator: the lack of any true authority or power.
One solution to this is to select a retired-judge mediator, who can say based on his or her experience, they have a good sense of the likely outcome.
Private mediators generally hope for more business from lawyers, which of course is more likely to happen when cases resolve. That motivation can spur the private mediator to continue to drive the process and to follow up with parties post-mediation to increase the chances of success.
Mediator Style Most (but not all) mediators start off as facilitative, but variance comes into play with respect to how quickly the mediator moves to the evaluative/ determinative role. The current or ex-judge mediators I have spoken to acknowledge that they may tend to move to that role more quickly than what might occur in a private mediation setting. This will be appreciated in some cases and not in others. Timing is important, because once the mediator had taken a strong evaluative position on an issue or valuation, his or her neutrality is compromised. Too-early evaluation by the mediator can result in polarization which can in turn negatively impact the process.
Cost Variation in fees, while a factor to be considered, should not be the controlling factor. Regardless of the mediator’s hourly or daily rate, the odds of success with an experienced mediator are high. One day’s mediation fees save an exponentially larger amount of expense down the road if the matter resolves. In addition, sometimes payment of fees can be negotiated, with the burden shifted to the other party.
Substantive Expertise There are talented mediators who mediate cases in any number of substantive areas, and have been doing so for years. Their conflict resolution skills are strong and translate to any case.
The advantage of a mediator with specific expertise in the area of your dispute is that, similar to a judge, he or she can speak with knowledge of the likelihood of success on various claims. That knowledge and experience increases their credibility, which in turn increases the parties’ trust in the mediator and in the integrity of the process.
Gender Generally, this should not be a consideration; expertise should be the factor that weighs most strongly. In some instances, though, clients may feel more comfortable with a mediator of their own gender if what occurred in the case impacted them in a way that may be perceived differently based on gender, such as with a sexual harassment case, or in terms of desired connection and rapport.
Conclusion Regardless of who is selected, remember that parties will be more likely to resolve a case where they believe the process had “transactional utility,” which means that they felt the process was fair. If they have been able to be heard, to be treated with respect, and to consider resolution based on input from a third party who is knowledgeable, fair and caring, the odds of mediation success are greatly improved.