Selecting an Experienced Neutral for the Complex, Highly Sensitive or Multi-Jurisdictional Case
|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The method (where parties alternatively strike candidates until one is left) is outdated for arbitrator selection, as the choice is too often the lowest common denominator.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.