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<xTITLE>What Kind Of A Mediator Do You Want?</xTITLE>

What Kind Of A Mediator Do You Want?

by Michael P. Carbone
January 2001 Michael P. Carbone

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 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.

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