In most cases, your attorney will select a mediator on your behalf. However, you will want to consult with your attorney and offer your thoughts on the type of mediator that best meets your needs.
Mediator Character & Style
What characteristics will you value in a mediator? Preferences differ. In some cultures a disinterested, neutral third party is preferred; in other cultures a village elder or religious leader is chosen. In a business dispute, a distinguished late career professional may be preferred. Youth may find a peer best suited to the task. In other cases, the expert from afar, the empathetic pastoral counselor, or the seasoned diplomat is chosen.
Mediator styles vary. Retired judges may be somewhat evaluative and focused on getting the deal done; they may offer opinions on settlement parameters. Other mediators may adopt a more facilitative style, guiding the process as parties design the settlement on their own. Transformative mediators nurture inner changes that heal relationships; they focus on personal growth and lasting change, viewing settlement as a by-product of profound inner changes. Skilled mediators tailor their style to the specific dispute and the unique needs of the parties.
In addition, a mediator may direct the process with a strong hand or allow parties to find their way through trial and error. Some parties want to be guided toward an outcome that allows them to move on with their life. Others prefer a gentler approach that fosters inner transformation and gradually overcomes barriers. While some pragmatic parties seek immediate relief and a return to business-as-usual, others seek more enduring outcomes based on transformation of long-term relationships.
Describe mediator characteristics you feel will best meet your needs.
Share your thoughts with your attorney.
Is an evaluative, facilitative, or transformative approach best for this dispute? Why?
Will you need a mediator who exerts strong control or a mediator who is less directive?
What concerns do you anticipate the other party will have when it comes to mediator selection?
Mediator Subject Matter Expertise
Will the mediator need to possess skills related to your specific industry? On occasion a mediator will be chosen for her knowledge of a specific profession or industry. Industry-specific knowledge allows a mediator to quickly understand pertinent issues. Familiarity with nomenclature, customs, and protocols proves helpful.
However, retaining a mediator for industry-specific knowledge with the hope she will render a verdict based on technical facts would be an error. A mediator does not deliver a verdict. If you desire a quasi-judicial ruling on the merit of technical facts you may wish to seek an early neutral evaluation provided by a legal expert in your field.²
In most instances it makes sense to assign greater weight to mediator ability to touch and transform hearts. Usually a technical question is not central to the conflict; rather, questions regarding relationship, ethics, and communication are paramount. Parties typically bring technical expertise to the table: they know their business. If a dispute truly pivots on technical issues, the parties would have jointly consulted an expert – if relationship problems had not prevented collaboration. The barrier usually has to do with the relationship, not technical facts.
Sometimes technical issues serve as a smokescreen to hide personal issues. I have listened for hours as parties debated proper industry protocol and argued their rights under the law only to achieve a breakthrough when a party finally revealed the real issue had to do with insult, loss of face, or jealousy.
If one selects a mediator for technical or legal expertise and that expertise fails to satisfy both parties the process hits an impasse. In contrast, when a mediator guides parties through difficult emotional, psychological, and spiritual terrain, the threat of impasse is lessened.
A mediator who is also a lawyer must avoid a predisposition to focus on legal issues when legal issues do not fully capture the underlying conflict. What began as a relationship problem may have turned into a legal problem only as a result of escalation; legal solutions may postpone the day when the real issues surface.
At times a legal decision may be all you desire; at other times your needs differ. Share your concerns with your attorney. You may recognize that factors driving the conflict are not what they appear to be; you may fear an outcome based solely on legal issues will not endure; you may anticipate the conflict will resurface if relationship issues are not addressed. Keep your lawyer informed so the right mediator can be selected.
Do technical issues require specific expertise?
What qualities, skills, or experience will you emphasize in mediator selection?
Will a technical issue require the testimony of an expert?
Have technical issues masked underlying relationship problems?
Are you concerned mediation will not focus on relationship?
Your legal rights may be central to your dispute; your lawyer may have researched issues and interpreted applicable law on your behalf. Opposing attorneys, however, may disagree in their analysis, requiring a judge to render a decision on the law – however, a mediator does not function as a judge and does not typically render legal decisions.
Instead, if you want to evaluate the strength of your case, have the mediator assume the role of a potential juror. Rather than offering a legal opinion, the mediator poses hypothetical questions jurors might ask. Such clarifying questions provide valuable insights that help you understand how your story communicates. Previously you might have imagined your arguments were clear and indisputable, now you become aware of ambiguity and discover jurors might respond in unanticipated ways.
In any event, mediation should not stall as a result of speculation on how the law will be interpreted. If the process hangs up on opposing legal views a litigation risk analysis might identify strengths and weaknesses.³ In such an analysis you assign a probability of success at each litigation decision node on a decision tree, and then you sum up the overall probability of success.
Few litigants complete a detailed risk analysis but completing the task is not always critical, as the important lesson is that a trial involves risk. The certainty of victory fades when probabilities are assigned. Perhaps for the first time the consequences of an adverse outcome are considered. Parties begin to realize juries can be unpredictable: results are not always just or rational. The risk analysis refocuses our attention on solving problems and repairing relationships rather than defending legal positions.
Might litigation risk analysis help you better understand your options?
Consult with your attorney regarding how you will move beyond an impasse created by differing views of the law.
What questions might you ask a potential juror?
What would you like to learn from a potential juror?
Are aspects of your case difficult to convey with clarity?
Agreeing on Mediator Selection
Your choice of a mediator does not end the selection process, as both parties must agree on the choice. Often, simply because you select a particular mediator the other party will reject him. You may need to enter into a back-and-forth negotiation. It helps if you know why you want a particular mediator.
In addition, a mediator must disclose all possible conflicts of interest. Any relationship that raises doubt regarding impartiality must be disclosed. Even the appearance of a conflict of interest may raise doubts, causing a mediator to step aside. If a conflict of interest exists, the mediator offers to decline the assignment. Parties must decide if a change is warranted.
In rare circumstances, however, a prior relationship between a mediator and the opposing party offers an advantage. The prior relationship may allow the mediator to convey bad news or difficult information that would not be accepted if delivered by an adversary or even by a neutral.
Consult with your attorney regarding how you will address mediator conflicts of interest.
Is there a possible conflict of interest that needs to be made known?
Do you anticipate a need for a pre-convening conference with the mediator?
Will you need to impart information to the mediator to help her design the process?
Why might the other party reject your choice of a mediator?
An inherent tension exists between litigation and mediation. In litigation, we seek to destroy our opponent’s credibility and maximize the verdict in our favor; in mediation, we seek to establish trust so we can collaborate and pursue a mutually satisfactory outcome. A dramatic shift in mindset and skills must take place as we change process.
A dispute played out in court typically starts with a lawsuit (complaint) that alleges bad behavior by another party. This is followed by a response from the accused party challenging the validity of the original complaint. Then, during the discovery phase (see Chapter 10), lawyers attempt to unearth evidence (in depositions and interrogatories) that will impeach the opposition.4 Through the use of pre-trial motions parties request rulings limiting evidence their adversary can present. As the financial and emotional investment increases, parties become fixated on defeating one another. Hostility escalates. Collaboration seems less and less likely – yet that is what we are called to do in mediation.
The transition from litigation to mediation is analogous to driving a hundred-miles-per hour on an icy road and slamming on the brakes. The result is a dramatic loss of control. For this reason, the mediator proceeds slowly, guiding parties as they shift gears to facilitated negotiation.
The shift in demeanor is also difficult for attorneys. In litigation, they have a duty to provide zealous advocacy, and clients usually desire such unwavering support. Zealous advocacy, however, does not mean unfettered legal warfare; the best advocacy often results when a settlement is achieved through persuasion rather than intimidation.
You may have retained an attorney for his aggressive demeanor but, in mediation, we must generate trust, which may be inhibited by an aggressive demeanor. Thus, the shift from litigation to mediation may require an attorney modify his style. This is not always easy.
In summary, during litigation the opponent’s concerns may be ignored or actively opposed, but in mediation we must give serious consideration to our opponent's concerns. If we dismiss their concerns, even unintentionally, the process shuts down.
Another possible dynamic warrants consideration. A party may be motivated to extend an olive branch simply to avoid the adversarial demeanor of opposing counsel. In this situation the adversarial demeanor promotes dialogue. It is uncommon, however, for aggression to promote conciliation; an aggressive demeanor usually motivates the opposing party to fight to the bitter end.
Research verifies litigating most often results in less favorable outcomes.5 A plaintiff who wins typically receives less than was previously offered in settlement talks; a defendant who loses pays more than he would have paid in settlement. Thus, you are more likely to satisfy your interests through collaboration than through a verdict. This makes the challenging work of shifting from litigation to mediation mode worthwhile.
Do you anticipate difficulty in shifting from litigation?
What do you anticipate will be the greatest challenge?
Discuss the shift with your attorney.
Do you and your attorney agree on strategy?
How will you handle disagreements that surface?
Do you anticipate the other party will make the shift?
How might you encourage the other party?
Attorney styles vary: some control and direct the process; some are client-centered, following the client’s direction; yet others collaborate.6 Prior to mediation, discuss with your lawyer how you will work together.
How would you characterize your working relationship with your attorney?
Will you need to discuss concerns regarding mediation in more depth?
Briefing the Mediator
Attorneys often submit mediation briefs that describe the conflict, and they may speak with the mediator over the phone to schedule and plan the process.7 At this stage, you are encouraged to disclose past violence, threats exchanged, or other risk factors that warrant convening in separate sessions, which allows you to remain at a safe distance. Mediation is not a rote process; every conflict presents unique demands, so be sure to share your concerns.
Will your attorney submit a mediation brief?
Is safety a concern?
How will you brief the mediator regarding your procedural concerns?
Will mediation need to take place with the parties in separate rooms? Why?