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Advocacy Skills: Tips for Selecting a Good Mediator
While members of the Bar benefit from local court programs that may assign mediators, often serving as volunteers, advocates and their clients often have cases that merit more control over the mediation process. In such cases, the parties may elect to choose their mediator.
With several sources for professional mediators, the advocate often struggles with criteria for mediator selection. Selection criteria are all too often limited to mediation experience and settlement rate. If you are in the market for a mediator, your mediator selection process may benefit if you consider the following additional criteria:
Subject Matter: Do you want an expert, or an expert mediator?
While many parties initially seek a mediator with expertise in the subject matter of the mediation, they often learn that there may be more value in a mediator who possesses highly developed mediation skills. This is a balance which each advocate and client should consider carefully. Mediation skills require experience and time to develop. A skilled mediator is usually a "quick study" of subject matter who is able to learn enough from pre-mediation statements to be able to understand the nomenclature and converse in the subject matter. Many advocates agree that, while subject matter expertise may not be essential for a mediator, some familiarity with the issues tends to lend efficiency to the process.
References: Are you getting the real picture?
Most advocates ask potential mediators for a list of references. The mediator typically provides names of counsel for whom the mediation process worked well and who will be most likely to provide positive references.
An alternative is to ask the mediator for the names of the counsel who participated in the mediator's last five mediations. You will learn not only whether some counsel had negative experiences with the mediator, but also, by looking at the length of time the cases span, be able to determine how active the mediator's practice really is.
Training: Is your mediator a trainee or a trainer?
Since there are few official standards for mediators, a mediator may have been trained for as few as two days. A course of even five days may not be sufficient to develop effective mediation skills. When interviewing a professional mediator, it is often useful to ask not only about the training they received, but also how much training they conduct. The challenge of teaching is often a greater learning experience than training received.
Philosophy: Facilitative, Evaluative or Transformative?
Does your prospective mediator believe that the "playing field" needs to be leveled by asking parties to share information that one party might otherwise prefer be kept confidential, such as alternative case theories or case law which may help one party? Does your mediator believe that it is constructive to share their opinion? Do they understand what happens after their opinion has been shared? Has your mediator been trained in transformative mediation, a process that attempts to strengthen parties' relationships, or in facilitative mediation, where the mediator serves as a catalyst to the negotiation process?
Credibility: Mediators don't settle cases, parties do.
A mediator's ability to quickly establish credibility with a wide variety of parties is critical. Experience and early research seem to indicate that the only reliable preliminary indicator of the success of mediation is the parties' judgment early in the mediation process as to the mediator's capability. Do prior counsel report that the mediator was able to establish credibility with the parties early in the process? Was the mediator able to handle difficult clients - even where attorney-client relationships had eroded? Remember: while many mediators take credit for resolving cases - i.e. their "settlement rate" - mediators don't settle cases, parties do. If your prospective mediator is promoting their settlement rate, might they not have established a personal interest in the outcome of your case?
Confidentiality: Do they quash subpoenas?
To what extend does the mediator protect confidentiality? What will your mediator do if subpoenaed by your client, your client's next attorney, or the other side? Have they had experience with these issues? Will the mediator breach confidentiality where they feel they have a moral or ethical obligation to do so? Will they reveal to you in advance what those thresholds are? Will they furnish you with all ethical codes to which they subscribe? What will they do when their ethical code conflicts with their ethical obligations as an attorney?
Cost: What if there is no mediation?
What are the mediator's policies for cancellation? What if only one party cancels? What if the mediator terminates mediation - will the parties still pay? Does the mediator offer daily as well as hourly rates? Does the mediator charge for preparation or travel time?
Lawyers and firms who have received training in mediation advocacy are able to offer clients additional expertise as settlement counsel in ADR (Alternative Dispute Resolution) processes. They develop not only litigation strategies, but also case resolution strategies, which include a rigorous process for interviewing mediators.
Jerry Roscoe serves as a mediator and arbitrator with JAMS, The Resolution Experts, the nation’s largest private provider of mediation and arbitration services.
ADR Experience and Qualifications
- Business and Commercial: Breach of contract, employment contracts, government contracts, international business agreements, contract fraud, health care agreements, business or law partnership dissolutions, publishing, intellectual property disputes, software disputes, insurance and reinsurance
- Class Actions: Certified and non-certified employment class actions; national class action regarding loan defaults
- Employment: Title VII, ADEA, FMLA, discrimination, Class Actions and non-certified streams of cases; employment agreements, government and private sector employment issues
- Environmental: Superfund clean up, chemical spills, water supply and groundwater contamination, leaking storage tanks, liability and cost allocation, facility siting
- Government Contract and Fraud: Qui tam, False Claims Act, civil and criminal matters, foreign and domestic government matters, civilian and military
- Healthcare: Health care fraud, medical negligence, credentialing, peer review, reimbursement, third party agreements, physician and medical group partnerships, hospital operations, physician and staff employment issues
- Insurance: Coverage, liability, malpractice, reinsurance, False Claims Acts
- Public Policy: Federal regulations, resource allocation, local and international political conflicts, commercial aviation flight and compliance issues
- Securities: NASD complaints, employment issues, broker/dealer issues, securities enforcement
- Tort: Catastrophic injury, aviation and maritime disputes, professional and personal negligence, medical malpractice, wrongful death
Mr. Roscoe has successfully mediated and arbitrated the following representative matters.
- Business, Commercial, and Contract: International contract dispute regarding development of internet communications throughout the Middle East; global software dispute involving all branches of the military and the Department of Defense; employment contracts for highly compensated individuals; hotel construction disputes; national business equipment lease agreements
- Class Actions: Settled nationwide class action on student loan defaults; settled international employment class action filed by Panama Canal employees; mediated class cases in securities; cases from the 65,000 plaintiff class of black farmers; motor vehicle manufacturing industries
- Employment: Matters involving highly placed corporate officers; government officials including members of the United States Senate and House of Representatives; class actions with international parties and the Panama Canal Commission; cases involving major airlines and motor vehicle manufacturing companies; national placement firms; streams of cases in the public sector, securities and motor vehicle manufacturing industries
- Environmental: Water contamination by the United States government resulting from World War II zinc mining operations; liability and cost allocation between state government and 63 PRPs to clean waterways flowing into the Great Lakes; mediated Superfund and CERCLA matters; leaking underground storage tanks; dioxin spill in Australia; groundwater contamination; landfill site cleanup; and siting of liquid natural gas facilities in New England
- Facilitation and Training: Served as a facilitator for many private and governmental organizations, with particular emphasis on symphony orchestras and labor management partnerships
- Government Contract and Fraud: Mediated qui tam and False Claims Act matters involving multi-billion dollar transactions; settled civil and criminal matters brought by HHS, the Department of Justice, and the Department of Defense in the fields of Health Care Fraud, defense contracting, and contracts with both foreign and domestic governments; settled global government contract matter involving computer technology, software technology, software development, and ownership rights
- Healthcare: Claims by physician associations against third party payors; Medicare and Medicaid suits by hospital associations against the United States Government; Medicare and Medicaid suits brought by United States Government against private health care providers; alleged breach of health care employment contracts; vaccine injury law suits; private party suits alleging medical negligence; credentialing complaints brought by physicians; peer review disputes including allegations of illegal drug use and sexual abuse; improper coding and insurance reimbursement, physician and medical group partnerships
- Insurance: Mediates federal vaccine injury claims, insurance liability, insurance coverage, and reinsurance matters; has also mediated insurance coverage in civil and criminal False Claims Act suits
- Public Policy: Mediated local and international political conflicts between Croat and Muslim factions throughout Bosnia; federal action involving a national environmental organization suing the federal government over water resource allocation; federal appellate case regarding siting of liquefied natural gas storage and transmission facilities in New England; case on remand from United States Supreme Court re-defining the federal regulatory definition of "coal operator" ; police misconduct; federal case regarding pollution by federal government activities; liability of government for wartime injuries
- Securities: Mediated cases brought by investors alleging brokerage house fraud; cases brought by broker dealers alleging employment discrimination; broker disciplinary matters
- Tort: Mediated first fatality caused by Amtrak Acela; wrongful death of NASA space shuttle specialist; family death caused by inoperative smoke alarms; shooting injuries during bank robbery; decapitation of auto and motorcycle drivers; professional and personal negligence, medical malpractice, and wrongful death claims pursuant to delivery of medical care, train accidents, fatal fires, firearms, automobiles, and workplace injuries
Comments from Counsel
Download "What Counsel Say About Jerry Roscoe." Biography
Honors, Memberships, and Professional Activities
- Adjunct Professor of Mediation and Negotiation, Georgetown University Law Center and George Washington University Law School
- Chair, ABA Health Committee for the Dispute Resolution Section
- Chair, D.C. Bar Litigation Section ADR Committee, 2004 term
- Fellow, International Academy of Mediators, since 1998
- Member, District of Columbia Bar Litigation Section Committee on Alternative Dispute Resolution, since 1997
- Member, Society of Professionals in Dispute Resolution, since 1989 (President, D.C. Chapter, 1993 and Board of Directors, 1992-1994)
- Frequent speaker on mediation for federal agencies and bar associations
- ADR articles authored by Jerry Roscoe include "What Did I Promise? The Path from Confidentiality to Conspiracy," April 2005; "Mediating Bioethical Disputes," October 2003; "Mediation, Arbitration, What's the Difference?" September 2002; and "Advocacy Skills: Tips for
- Selecting a Good Mediator," January 2002
Background and Education
- JAMS Panelist, 2003-present
- Partner, ADR Associates, LLC, 2000-2003; Senior Associate, the Center for Dispute
- Settlement, 1990-present
- Litigator and Mediator, 1982-1990
- Special Assistant United States Attorney, 1982
- J.D., Catholic University Columbus School of Law, Washington D.C., 1982
Additional articles by Jerry Roscoe