Mediation has matured. Counsel are increasingly asked to involve clients in the mediation of sensitive, complex, high stakes or multi-jurisdictional matters. Even though the stakes are high, too often not enough care is given to the selection of the mediator.
Hundreds of people, many with limited experience, are offering mediation services. The assumption that a good lawyer, or even a respected former judge with limited private mediation experience, will be an effective mediator in these particular cases, may be risky. A cursory choice may come back to haunt counsel if clients are dissatisfied with the process or person suggested.
Indeed, while mediation is non-binding, the more sensitive or complex a matter, the more critical is the choice of the neutral to maximize the opportunity for resolution. Your client deserves the same care that you take in the choice of a key expert or the care taken in the choice of experienced trial counsel.
Having been a mediator candidate in numerous selection procedures over the last 20 years, the intent here is to poke irreverently at traditional approaches and, in the accompanying graphic below, provide a specific 3-step mediator selection process for use in these types of difficult cases.
Myth #1: "If he or she is good for them, it can't be good for me."
Choosing a mediator is quite different from choosing an arbitrator. As stated by one mediation savvy general contractor, "I lean toward a mediator recommended by the other side, assuming my interviews with the other lawyers who have used him or her, confirm demonstrated ability to help parties resolve tough matters… Indeed when I have a particularly good case, I would rather have the other side comfortable with a mediator who may have to do some important reality testing with them." Particularly in multiparty cases, an experienced mediator will generally have worked with one or more of the parties before.
Myth #2: "The striking process traditionally used in choosing an arbitrator can also be used in mediator selection."
The method (where parties alternatively strike candidates until one is left) is outdated for arbitrator selection, as the choice is too often the lowest common denominator.
Striking is even more inappropriate for mediator selection. With the right process, parties should be able to encourage the "cream" or the candidate with most relevant experience to "rise to the top." Counsel might consider the prioritization process in the accompanying graphic below. Parties have joint interests in seeking out a demonstrated record in a candidate's ability to help parties to reach resolution in similar very difficult cases. Again, mediation is non-binding, but it can generally only be done once.
Further, traditional notions of conflicts, which might arise by a mediator serving in a neutral capacity in a previous matter with one party, as outlined in Myth #1, should be applied very differently in mediator selection. All parties should be encouraged to talk to other counsel involved in the candidate's previous mediations.
Myth #3: Subject matter expertise is the defining element, or "I practiced in the area for 25 years, of course I can be effective."
A basic understanding of the subject matter and the law is certainly important, but is only part of the story. Indeed such experience can create a barrier. The perspective of a respected plaintiff's or defense lawyer, architectural design professional or accountant may be useful to provide evaluative or reality testing data at the appropriate time in a particular process.
However, simply being "right" is often not enough to bring embittered parties to a mutually agreed resolution in sensitive cases. More important are the delicate ability to suggest that a party's position may be flawed, in a way that it can be heard and dignity can be preserved, and the ability to integrate broader interests, which can lead to resolution. As with other professions, these key mediator skills are greatly enhanced through considerable experience.
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3 Step "Prioritization" Mediator Selection Process for Highly Sensitive, High Stakes or Multi-jurisdictional Matters
Overview. Mediator selection in a particular jurisdiction is often simplified by parties' mutual previous positive experience with particular candidates. Often a person can be selected with little need for process.
Other cases, particularly complex, highly sensitive or matters involving counsel from several jurisdictions may require more process. As noted in Myth # 2 in the related article, you can do much better than the outdated striking process. The following practical process can be completed in a modest amount of time.
1. Circulate Individual Lists. Each party should independently submit a specified number (3-5) of candidates, then circulate the list for conflicts, candidates which for other reasons are not acceptable to another party, and to note who appeared on multiple lists.
2. Create a Joint Candidate List. After circulation, certain names will be removed peremptorily or due to conflicts, leaving a joint candidate list. One candidate may be apparent by an appearance on each list, or with further investigation, one party may choose someone suggested by the other side due to particular experience in the area. Avoid the "if its good for them, he or she cannot be good for me" scenario (see Myth #1). The separate lists may suggest a final joint list of 2-5 remaining candidates from whom additional information may be requested.
3. If Necessary, Final Prioritization and Interview.
- Prioritization. If the list is still lengthy (3 or more), each party then circulates a prioritized ranking of all on the list. Using 1 for the top ranking, the candidate with the lowest number should be the most highly regarded candidate, allowing the "cream" to rise to the top. Consider and interview to break an impasse due to a tie. Given the importance of the mediator, if a field of 5 or more is reduced to 2, an objective tie-breaking device should be used only if discussion fails to consensually choose the mediator from the final two candidates.
- Interview. If the parties narrow the field to 2 or 3, with no clear choice, consider a telephone interview, or if the case warrants, a face-to-face interview. Generally parties pay out of pocket travel costs and may, if the individual is chosen, pay for the professional time if the interview turns into a planning session.
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Good hunting.
About the Author:
A full time neutral with JAMS, The Resolution Experts, William E. Hartgering has over 20 years of full time ADR experience and founded the JAMS Chicago office in 1982. Appointed as an independent neutral by federal or state courts in 10 states, his national practice includes the resolution of more than 1000 matters in some 35 states involving parties from 4 continents. Bill may be reached at 312-655-0555.
This article originally appeared in the September 2002 ADR Directory published by the Chicago Daily Law Bulletin. |
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