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The success or failure of a mediation often depends on who the mediator is. Before retaining a mediator you should find out as much as you can about his or her qualifications and methods. You can ask the mediator directly and you can also check with parties who have used his or her services in the past. Then evaluate the mediator in light of each of the factors discussed below to see if he or she is right for your case.
Subject Matter Expertise.
Most lawyers are looking for a mediator who has expertise in the type of case at hand. You cannot afford to spend time educating the mediator on the law. But more importantly, the mediator will often need to play devil's advocate with the parties, and expertise in the field makes the mediator more effective in that role. In some cases parties are looking for a mediator who can also help them evaluate the case, and in those situations knowledge of the substantive law will be essential.
Training and Experience.
A qualified mediator will have undergone formal training in the mediation process and have accumulated substantial experience. Subject matter expertise without formal training in mediation is generally not sufficient. Indeed, an untrained mediator may actually do more harm than good.
It is often said that there are two kinds of mediators: facilitators and evaluators. The statement is somewhat misleading since many mediators may employ both of these styles, and will often do so in the same mediation. Facilitators promote communication between the parties in order to help them reach a mutually acceptable resolution. In this classic or "pure" model of mediation, the mediator refrains from expressing any opinion on the merits of the case. Evaluators, on the other hand, are willing to express an opinion on the likely outcome of the case, or at least on the merits of selected issues in the case. The best mediators will, in my opinion, use an approach that draws upon both styles as the needs of the case may require.
There is a common misconception that the mediator should not have had any prior relationship with the parties or their counsel. Although the proposed mediator should disclose any prior relationships, no ethical rule precludes the use of a mediator who knows or has dealt with one or more of the participants, and it may actually be advantageous to use such a mediator. Many litigators believe that the best mediator to use is the one that the other side wants since the mediation is more likely to succeed if the adversary trusts the mediator.
Focus on Settlement.
Being an effective mediator often requires an extraordinary amount of patience, and many cases will not settle at the first meeting. The mediator must be prepared to follow up and to work with the parties until the case is resolved.
Michael Carbone is a full time neutral whose practice focuses primarily on construction claims and defects, real estate, business disputes and complex litigation. He has mediated and arbitrated for approximately ten years. He has served as a court-appointed referee in real estate and business matters.
He is a past president of The Mediation Society, a member of the State Bar Standing Committee on ADR, the ADR Committee of the State Bar Business Law Section, and the Board of Directors of the California Dispute Resolution Council.
He practiced law for more than thirty-five years. His practice emphasized commercial real estate and general business matters, including litigation of construction, real property, land use, and business cases.
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