Tip Sheet on Selecting a Mediator

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***Think about what you want. Primarily, negotiation assistance, of course. Do you also want a neutral evaluation of your case and an informed guess as to probable outcome (i.e., an evaluative mediator)? Are there cultural issues (ethnic, religious, foreign-language, etc.) that would make the parties more comfortable with a mediator familiar with their culture? Do any of the parties have a disability that requires sensitivity to that specific disability or a special accommodation?

***Compile a short list of possible mediators. Seek referrals from people you trust. Think of mediators who you have heard about, met or seen speak . The major providers of mediators—in New York City it is the American Arbitration Association (AAA) and JAMS—post profiles online. Court rosters also have profiles on line which you can use even for non-court-ordered mediation.

***Arrange for a phone call. Ask about the mediator’s experience and outlook. Explain a little (very little) about the case and see if she has handled any similar ones. Get a feel for his approach and personality.

***Don’t assume you have no say if you are assigned the mediator (in court and other panel mediation programs). Even then you may be able to influence the selection. Ask for the kind of experience you want (“It would really help if the mediator has worked on construction cases” or a particular person “A colleague had such a good experience with Suzy Doe, I wonder if she is available”). The people making assignments often listen.

***What should you do  if your adversary suggests someone she has used before? Instinct may be to say no, but if the adversary trusts this person, he will be more likely to listen to any assessments she makes about the weaknesses of the case, etc. If all else checks out, you have an advantage if your opponent likes the mediator.

***How important is substantive experience? It is often overrated—generally go for intelligence, broad experience, style and personality. You may want to make an exception to this if (1) the facts and legal precepts are unusually complex or arcane (2) you (or your adversary) will be more comfortable with someone who really knows the overseas franchise world or (3) you want a neutral evaluation of what a court or arbitration panel is likely to do.

***Finally, after checking out a candidate, trust your instincts. It is key that you have confidence in and  feel comfortable with the mediator.

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Alan Gross,   New York NY	AlanEGross@gmail.com      01/07/12
Consider community centers?
Excellent advice, Nancy. Choosing a mediator with the appropriate qualifications and fit including subject expertise, availability, responsiveness, and preferred style (evaluative, facilitative, transformative etc.) can be critical for resolving disputes effectively and quickly. You suggested checking out high end rosters like JAMS and AAA, but didn't include the community mediation centers that exist in many venues. Most such centers vet and train their mediators carefully and often evaluate mediators to insure that quality is maintained. In addition, most community mediation services are free of charge or offered on a sliding scale. Of course, some clients believe that quality of service is highly correlated with the amount of the fee! In addition, few community centers allow clients to choose their mediator or even to review the mediator's experience and qualifications. As a mediator with a private practice, who serves on a number of panels, but who also volunteers many hours at New York Peace Institute, a tax supported center, I can assure you that the volunteer services that I (and many of my colleagues) provide are equivalent to the ones I offer to paying clients. Add New Comment

Lisa Pomerantz,   Bohemia NY	01/07/12
Nancy, Very insightful article, especially the rationale for considering a mediator previously used by a party. Although I concur that mediation skills are very important, I do think subject matter expertise is an under-appreciated asset. It does permit the mediator to propose possible resolutions that the parties might not think of themselves. Lisa Add New Comment

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