The purchaser of any service has to know in advance whether the provider can deliver high quality. If the purchaser happens to be a lawyer, and if the provider will be a mediator, how should the lawyer evaluate the potential provider?
The Dispute Resolution Section of the American Bar Association answered this question in 2008 when it issued the Final Report of the Task Force on Improving Mediation Quality
. After conducting research, the Task Force determined that, in the opinion of frequent and sophisticated users of mediation, four requirements are essential to a "high quality mediation." Lawyers should understand what all of these requirements are and should ascertain whether a potential mediator can satisfy them. This should be done by talking both to prior users and to the mediator.
The following questions should be asked: does the potential mediator: (a) hold a conference call with the parties before the mediation; (b) during the conference call does the mediator talk about how the process can be optimized in order to improve the odds that the case will settle; (c) does the mediator have familiarity with the area of law that is involved; and (d) can the mediator be counted on to study the briefs carefully?
Customization of the Process.
The standard caucus model of mediation calls for the mediator to begin with a joint or plenary session, at which all participants are present. Thereafter, the participants are sent into their separate caucus rooms. This model was followed regularly during the 80's and 90's, but in recent years it has fallen out of favor. Mediators are now expected to fashion a process that has more flexibility in order to optimize the use of time, avoid unproductive confrontations, and get the right people talking to each other at the right time. This is particularly important in complex cases.
The mediator should be prepared to offer a neutral point of view on the issues. One or more parties may need a "reality check," and the mediator must be able to serve as a devil's advocate for both sides. "Analytical" differs from "evaluative" and it is worth reading the Task Force's Final Report to understand what is meant.
. At some point it may appear that an impasse has been reached, and the mediator should have some techniques to get past it. That being said, it is not realistic to expect that every case will settle at the initial session. In fact, many cases will be expected to require some follow-up. The mediator needs to identify the reason(s) why the negotiations have stalled and help the parties make a plan to get them restarted so that the case can be resolved.
MICHAEL P. CARBONE is a senior mediator who has also served as an arbitrator and court-appointed referee. His dispute resolution practice has been built over a period of more than 25 years and covers a wide range of fields. His exceptional combination of transactional and litigation experience enables him to handle complex litigation and other challenging cases.
Michael resolves business and commercial cases, real estate disputes, employment claims, construction claims and defect cases, estate and trust matters, insurance issues, legal malpractice, corporate and partnership disputes, and personal injury cases. In his capacity as a court-appointed referee he has undertaken a wide variety of responsibilities, including sales and appraisals of real property, and the adjudication of trust accounting and administration matters.
He is a member of numerous dispute resolution panels, including the National Panel of Arbitrators of the American Arbitration Association. He is also listed on the mediation and discovery facilitation panels of several Superior Courts.
He is a founder and past president of The Mediation Society, and a member of many other professional organizations, including the Academy of Court-Appointed Masters, the Dispute Resolution Section of the American Bar Association, and the Association of Business Trial Lawyers.
Michael is a frequent author and speaker on alternative dispute resolution issues. He publishes a monthly newsletter entitled "Resolving It" which provides timely advice on strategies for successful mediation and discusses current issues, such as reforming the commercial arbitration process and mediating e-discovery.