[PODCAST] JAMS Neutrals on Tips for Selecting the Right Mediator

In this podcast, JAMS neutrals Hon. Bonnie H. MacLeod (Ret.) and Hon. Nancy Holtz (Ret.) discuss what to look for when selecting a mediator and the questions and considerations that may guide that process. During this conversation, the judges share what they believe are the core criteria to look for when choosing a mediator, including strong mediation skills, empathy, reputation and temperament. They also discuss how subject matter experience comes second to strong mediation skills, and that parties should focus more on selecting mediators with a demonstrated ability to close cases and less on selecting an individual who is well versed in the jargon specific to their industry. Judge MacLeod and Judge Holtz also share how the process to dispute resolution can vary across mediators, the types of cases where mediators are the most valuable and the common questions received by mediators when parties are determining whom to approach for their case.

Moderator: [00:00:00] Welcome to this podcast from JAMS. Today we're discussing a perennial question for lawyers and their clients: What should they look for in a mediator? To address that question and others, we have two JAMS mediators and former judges on the Massachusetts trial court: Judge Bonnie MacLeod and Judge Nancy Holtz. Thank you both for joining us. Judge MacLeod, I'll start with you. What matters most when choosing a mediator?

Hon. Bonnie H. MacLeod (Ret.): [00:00:31] I'll tell you. I actually talked to some lawyers about this the other day. I was doing a seminar with three lawyers with whom I have mediated, and I said, “What matters most?” What I gleaned from that—our discussion—was, it's kind of a trifecta.

What I heard was three things are most important in choosing a mediator: experience, reputation and temperament, in no particular order of importance. By experience, I mean experience in the life and the law, whether it says, a trial court judge, a litigator, a partner in a law firm, but someone who has some heft in terms of age and experience in the law and likewise maybe some neutral who's been a neutral as their practice from the beginning of time.

But I think experience in terms of just having put in the hours, put in the years. So that then you get to the second part of the trifecta, which is reputation, which is that reputation is founded in large part on that person's experience in the practice of law, whatever milieu it was in.

And lastly, temperament. And it might depend on the nature of the—the dispute, what type of a temperament you want in your mediator. But those three things seem to be key in choosing a mediator, all of equal importance, and maybe some more than others, depending on the nature of the dispute.

Moderator: [00:01:55] And Judge Holtz, do you want to add anything to the trifecta of experience, reputation and temperament?

Hon. Nancy Holtz (Ret.): [00:02:00] I think that that's all well said. And, you know, you asked what matters most when choosing a mediator. You know, in real estate, there's a well-known adage, you know, what are the three most important things when you're trying to sell a piece of real estate? And people say, location, location, location.

And you know, I say when you're trying to choose a mediator, it's not a battle of resumes. It's not necessarily what someone's credentials are. What you want above all else is a mediator with strong mediation skills, a closer. And so, when trying to choose a mediator, that is probably the most important thing, much like location, location, location in real estate. With mediation and picking a mediator, it is pick someone who has strong mediation skills.

Moderator: [00:02:46] OK. And Judge Holtz, given that, how important, though, is relevant legal subject matter expertise or industry knowledge? Does that matter less than the skills of actually mediating?

Hon. Nancy Holtz (Ret.): [00:03:00] I don't think that it does matter anywhere near as much as this—as being a strong mediator with strong mediation skills. You know, I think that—and I'm aware that many of attorneys’ clients, they want to pick a mediator—and we hear this—they want someone who knows their industry. And I appreciate that can no doubt be comforting to the clients to have someone who knows their space, is fluent in speaking their jargon, using their acronyms. And I certainly have a number of niche areas where I practice a lot, and it makes it easier because you do know the lingo of that particular subject matter.

But ultimately, once you are involved in a dispute that brings you to mediation, it is quite frankly not as important that I know your world, because you need to know my world. You have now come into the world of litigation, arbitration, and you need to find yourself someone who has expertise in the forum that you are going to end up in, whether it be a court with a judge or a jury, or before an arbitrator.

Kind of put differently—when you think about how important legal subject matter expertise or industry knowledge is, clients will say, “Well, I want someone because then they can really understand my dispute and help us get it resolved.” And if you don't think that you can distill your claim or defense into a clearly compelling argument, understandable by and to a seasoned mediator, including a superior court judge, then I would suggest that what possible hope do you have that you're ever going to be able to prevail in front of the ultimate audience of judge, jury or arbitrator?

Because the odds that you're ever going to find yourself before someone who has subject matter expertise in your client's particular business—those odds are infinitesimal. So, I would just suggest that it's easier and just makes things move along more quickly when you have that subject matter expertise.

But ultimately, you know, you need someone who has strong mediation skills. They're a strong, effective mediator. That is what is going to get the case settled, not because someone knows your client's jargon and knows your client's particular industry.

Moderator: [00:05:04] OK. And Judge MacLeod, do you have the same opinion?

Hon. Bonnie H. MacLeod (Ret.): [00:05:06] I do. I agree in a large part. I do agree. There are certain niche cases where a lawyer is well served to choose someone who has operated over the period of years in that same sphere. But as superior court judges, we found ourselves on a daily basis dealing with cases that weren't all the same.

They ran the whole gamut of every kind of dispute that you can imagine. And the fact is, it's the lawyer's job if they feel that the mediator isn't totally up to speed with that particular milieu. They can give us that information. We read a lot and—and they should be able to teach us enough about the subject matter for us to be able to mediate their matter.

Moderator: [00:05:49] OK. And Judge MacLeod, you mentioned temperament at the top of the episode. What other soft skills or characteristics are important to look for?

Hon. Bonnie H. MacLeod (Ret.): [00:05:59] I think about those all the time because I think that's probably where my strengths are for the most part. Empathy. And some cases might need somebody who's more empathetic than others, depending, again, on the subject matter. But empathy is always important.

Patience. Being patient throughout the undertaking, no matter how tired and maybe short-tempered. Some people get the mediator has to stay patient throughout. Optimism. No matter what's going on in the rooms, you, the mediator, has to be optimistic about the result and mirror that optimism to others.

A sense of humor. A good sense of humor throughout. Occasionally, you can break a logjam just by saying, “Well, I guess we've found the hill you want to die on.” And–and then they will immediately respond, “Oh, no. No. We're OK.” And then last, persistence. Persistent. The mediator has to be persistent throughout—and in fact has to be persistent in following up—if, on a given day, the case does not settle, because it really will eventually if you stay persistent.

Moderator: [00:07:11] Judge Holtz, you want to add another characteristic?

Hon. Nancy Holtz (Ret.): [00:07:13] I think that Judge MacLeod knocked it out of the park, and I think that I would say that the kind of overarching observation is that when you're picking a mediator, you're not trying to find someone who's going to come into the room and give you and your client a lecture on the law or, more fatally, a lecture on why the mediator doesn't believe your case is strong and what the flaws are, etc. A good mediator has to have good instincts and people skills because in a mediation we're not discussing a law review article; we're discussing a case which, from either [side] or both sides, usually it's very impactful. It can be hurtful, risky, you name it. And a mediator simply has to understand and manage those non-legal issues and have those skills that Judge MacLeod just referenced, which are limbed through every dispute.

Moderator: [00:08:03] Judge Holtz, what about the process each mediator uses? How important is it to know about those differences?

Hon. Nancy Holtz (Ret.): [00:08:10] Well, you've used the word “process,” and I think that it's helpful just to have a sense of the mechanics of the day for an attorney to gather that information from a mediator in advance. I think it's helpful to know, but probably more importantly, it's important to know that you have a mediator who has the flexibility and the fluidity to use whatever process is necessary and helpful to get the job done, which is to get the case settled.

When a plumber comes to your house, he doesn't just show up with a wrench. He has a toolbox filled with a variety of implements that he may need to use, and I would say—with apologies to non-Patriot fans—when Coach Belichick shows up at a game, he doesn't stand at the sidelines with a single piece of paper in his hands. He has a playbook. He has a number of different strategies that he will implement depending on the circumstances.

So, process. It's helpful to know, generally speaking, how does this particular mediator go about a mediation? But I would suggest that it is important that you pick a mediator who can describe a general process, but you do not want a mediator who is overly formulaic, because every case is different. So, you need a mediator who's going to express a willingness and an ability to shift and move and expand or change up the process as the circumstances and as the case requires.

Moderator: [00:09:34] And Judge MacLeod, is the stage of the dispute relevant to choosing a mediator? Are some mediators better when a settlement is close as opposed to when the parties are still far apart and the dispute is relatively new?

Hon. Bonnie H. MacLeod (Ret.): [00:09:50] I don't think so. I think the stage is important in the sense that the lawyers have to be sure that they've teed up their mediator appropriately. In other words, if I am about to mediate a case which has finished discovery—so there are depositions, or a motion for summary judgment has already been heard—that's relevant because that stages the case for me in terms of, well, one party just lost a motion for summary judgment; they now understand that—that settlement should be the way to go at this point rather than wait another year for the trial, where they might get dinged. The stage for me is only important insofar as sometimes the lawyers will posture more. “Well, this is early on, Judge, so the fact of the matter is once we do discovery….” My answer is, “You haven't done discovery.”

Here's how the boots-on-the-ground facts are right now. That's all we're ever going to know. So, I think that we can utilize that to say, you can walk the litigation road all [the way] to the end if you want, or you can settle the case now. So, I think it's only important in that you can educate your mediator more if you're at a different stage. If you've done all the depositions, believe it or not, I probably want to read them so that nobody's posturing about what the facts are.

I will know the facts just as well as everyone else in terms of what has been said at a deposition. So, to that extent, it's important because I'm going to know what I want to ask the lawyers to give me before I actually mediate the case.

Hon. Nancy Holtz (Ret.): [00:11:33] You've asked, are there some mediators who are better, you know, early in the dispute versus later and some mediators who are better when the parties are closer versus far apart.

The first part, I think, goes back to what we're both talking about—and at the risk of repetition—is you need a good mediator that can do both. That can address a mediation that is pre-suit, pre-discovery with very little information. So, sometimes you're really trying to sell a leap of faith to get a case settled versus a case that's much farther down the line all the way to the—kind of the eve-of-trial-type cases and someone with strong, good, seasoned mediation skills; it really doesn't matter. I mean, they can do both, and they can do everything along the spectrum because we just have learned over time how to adjust our approach to the life of the case, as Judge MacLeod has just described.

The second part of your question I kind of got a chuckle out of because you've asked, well, are there some mediators who are better at settling a case when the parties are close together versus far apart? And, you know, to be blunt, when the parties are really close together, pretty much anyone can do that. It doesn't really take a whole lot of effort if the parties are close to get them ultimately to close that gap and get the case resolved. Where you need a seasoned, powerful mediator is when the parties are very far apart.

That's when you need—I like to think Judge Nancy Holtz—that's when you could use a Judge MacLeod. If the case is easy, you really don't need us. If the case is tough, you know—I think of it in my mind—I thought, you know, who are you going to call? Ghostbusters,” when you have a plaintiff making a demand of $5 million and the defendant has told you he's only going to go up to around $50,000. That's when you need to call in a really strong, seasoned, experienced mediator that has those skills that I keep talking about and that Judge MacLeod has referenced in so many different iterations—is you need that skill set in order to get a tough case settled.

Moderator: [00:13:36] And Judge Holtz, how do you get the information you need before choosing the mediator? What should lawyers read, or who should they talk to? What’s the process? 

Hon. Nancy Holtz (Ret.): [00:13:46] I think that like any of us these days, when we’re trying to learn anything about anything or anyone, you know, we always start with our Google search. And for mediators, much like attorneys, you're going to look at the website, the neutral's website, whether it's through a provider or an independent website, perhaps LinkedIn, which is usually a different iteration of what's on the website anyway, and that'll give you some basic information. But I would suggest that's the beginning of the search, because that just gives you some background. But quite frankly, picking a mediator isn't trying to figure out, you know, how many presentations someone has made, whether it be in a podcast or in a blog, or, you know, how many dispute resolution panels the person has been on.

You can learn all that—how many articles they've written—you can see all that on the website. But that's not going to tell you what the mediator's abilities are in the mediation, which hearkens back to something Judge MacLeod referenced earlier: reputation. And the only way you can find that out—look, we can all puff ourselves up on our websites with our credentials—ultimately, it's talking to other attorneys. Whether it's other attorneys in your own firm or other attorneys in and among your colleagues, that's really the best way to get a sense. And ultimately—I'll give you one last one—is talk to mediators.

I know I can vouch for Judge MacLeod and myself to tell you we have both had the experience on more than one occasion where an attorney, you know, might call one of us up and say, “Hey, I have a certain kind of dispute. It involves such and such.” And I might say, “Oh absolutely. I have no problem doing that. Have done a couple of ’em already. Done many of them already.” And so many times, we might be able to handle it ourselves. Other times, quite frankly—and again, both Judge MacLeod and I have had this happen—someone comes to us and asks us, “Hey, do you think that you could handle this type of case?” And I've had occasion to say, “You know, it's not really in my wheelhouse. You know who would be terrific…” And I can suggest other people.

So, another really good source of information is ask mediators that you know, because they will either tell you why they think they might be able to handle it or, with a few questions, you might get the sense that they're probably not exactly what you're looking for or, ultimately, I like to think that most good mediators will be forthcoming and happy to give you the names of people who they think will be best suited for your dispute.

Hon. Bonnie H. MacLeod (Ret.): [00:16:12] There are also ways that lawyers are able to make it known what mediators they use, why they use them. I think the Massachusetts Academy of Trial Attorneys has some kind of a listserv. I believe the employment lawyers have a listserv. I believe many organizations will help each other out—will help among the lawyers.

And, so that we don't have to be, you know, the source of giving that information out. Lawyers are not usually going to call us to ask us if we're good at what we do. They’ll call us to see are you available and is this the type of case—as Judge Holtz said—is this the type of case you're willing to take on?

And they know they can trust us to tell them the truth whether it's in our wheelhouse or something we'd feel comfortable doing—which it often is—but we might know someone who could do it better within JAMS or even outside of JAMS, if we know that’s their regular type of practice. I know one type of practice I don't do, and JAMS doesn't do, which I will give them the names of other mediators.

Moderator: [00:17:16] Aside from availability, Judge MacLeod, what are the other kinds of questions lawyers may want to ask potential mediators?

Hon. Bonnie H. MacLeod (Ret.): [00:17:24] One for sure is, are you a closer? And they'll say it nicer than that.

They'll say, “Judge, I know you have a lot of experience in this area.” They won't ask me right out, “What's your percentage of success? I hear you can take this type of case on.” They will ask about that. They will ask if you have any idiosyncrasies about mediation. I, for example—I'm very clear with lawyers that I don't believe that making opening arguments in a mediation is very helpful, that it is quite unhelpful. And I did want to say, I really appreciated what Judge Holtz said about the fact that we can adapt the process to fit the sense of what we’re picking up. We could have just started the mediation and realize that the process we thought would work is not going to work.

And we will tell lawyers that we will adapt as the case goes on. That's one thing they do ask us, because they don't know how the other lawyer is going to behave in the course of mediation. So, they will ask if we are adaptable, and we are.

Moderator: [00:18:33] Are you adaptable and are you a closer? Judge Holtz, any questions to add to that list?

Hon. Nancy Holtz (Ret.): [00:18:39] I think that the main thing is lawyers should just have a conversation with a potential mediator because a good mediator—no matter how busy they are, no matter how booked they are—will always make time to have a chat with an attorney while the attorney's trying to make a decision. And so, we’ve touched on a lot of things that we think that attorneys should have in their minds, but probably the overarching point is just to get on a call and reach some comfort level with the mediator, because as Judge MacLeod said, you know, an attorney is not likely to ask, you know, what is your win-loss record on mediating cases?

But I think for a lot of attorneys, they want to just get a sense—they want to get a comfort level. And so going back to the question you had asked earlier about subject matter expertise—if an attorney's concerned, they may ask the mediator, “Hey, I've looked at your profile on your website, and it doesn't look like you've ever handled a hot air balloon case before. And my client is very concerned about that. You might not know enough about hot air balloons to be able to be very helpful to me.” Now, I might say, “Well, gee, I don't know if I can help you because I’ve come to understand that hot air balloon has a separate body of law.” But it is more likely that I'm going to say to you—whether it's a hot air balloon dispute or a nuclear power plant or a dispute between a sneaker manufacturer and a sporting goods store—the law of the breach of contract or intellectual property or, as Judge MacLeod just referenced, wrongful death—the law is not subject matter driven. It is the law. And so, I think that the questions that I would ask would just be to have a conversation with the mediator and reach some level of comfort and assurance that the mediator is up to the task at hand, which is helping you and your client get your case settled.

Moderator: [00:20:37] OK. Well, Judge Holtz, we’ll give you the final word. Thank you so much to both of you.

You've been listening to a podcast from JAMS, the world's largest private alternative dispute resolution provider. Our guests have been Judge Bonnie MacLeod and Judge Nancy Holtz of JAMS. For more information about JAMS, please visit www.jamsadr.com. Thank you for listening to this podcast from JAMS.