Mediation Bytes by Karin Hobbs
Mediator selection is one of the more important decisions you will make as you prepare for mediation. Check with others about their experiences with mediators. Think carefully about what all attorneys and clients need. But, most importantly, interview the prospective mediator.
Some consumers of mediation services believe they need someone “with authority” who will tell the clients or attorneys what to do or make them see the light. Likely you do need a person who understands the law and will provide an effective reality check of how a court may rule — but be careful. An authority figure without proper training or skill as a mediator may blow the deal. What you really may need is a mixture of skills — such as Eric Galton of Austin, Texas or Jeff Kichaven of Los Angeles, California ( Master of Mediation Moves Up), both involved in the International Academy of Mediators. At times, attorneys may need a mediator with expertise, for example, in appellate law or Chinese culture. At other times, subject matter expertise is less essential — the clients need a mediator who listens and provides a reality check they can actually hear. Whatever the case, select your mediator carefully and focus on what will best serve the interests of the clients.
1. Research the mediator on the internet. Is the mediator experienced? Check out their webpage and/or blog. Have they attended extensive training? Have they mediated frequently – at least 100 or more cases a year for a few years? Are they involved in professional organizations? Do they have “reviews” such as references on their webpage and/or comments of attorneys and clients? What can you glean about their expertise and style on their webpage? Do they seem appropriate for your case, your clients, the other clients?
2. Call people. (You can email, but the answers will not be as frank.) What do consumers of that mediator’s services have to say? Attorneys? Clients? Can the mediator handle difficult and yet typical conflicts such as the client who wants to litigate as a matter of principle? Can the mediator move parties past impasse to a signed agreement?
3. Interview the mediator. How will the mediator handle the mediation process? Does the mediator call parties in advance? Will the mediator actually read briefs? Does the mediator adjust the mediation process for each case? Or is each case conducted the same? How will the mediator handle and organize this kind of a case? You can and should ask all of these questions.
4. Does the mediator have a joint opening session? Why or why not? Most professional mediators will be flexible on this point. Like most mediators (particularly those involved in the International Academy of Mediators, see www.iamed.org), I talk to attorneys in advance. I generally ask whether a joint session would be useful. I mediate many cases with complex legal issues, multiple parties, and/or high emotional content, so advanced discussions are important. In most instances, the clients and attorneys have an opinion about the usefulness of the joint session that must be carefully and thoughtfully discussed.
At the current time, most attorneys want to avoid the joint session, particularly if they have not been in a mediation with a skilled mediator. They have seen the joint session “blow up”, and have spent hours trying to calm a client. Experienced mediators understand how to make a joint session productive, and how to allow parties to have an effective conversation. A brief pre-mediation discussion between the mediator, the client and the attorney can assist enormously in determining if a joint session is a good idea, and, if so, how and when to have a joint session. The mediator can also assist the attorney and client in making the joint session productive.
For example, in a recent case two people who were in litigation regarding their business venture were privately discussing with me whether a joint opening session would be helpful. Both parties were naturally hesitant — they were in a lawsuit. They had been close friends some years back. One party was pretty angry due to the protracted litigation and concerned he would rage out of control. The other party was willing to talk. One attorney had prepared an opening statement and documents to share and wanted a joint session. The other attorney was opposed to a joint session because his client was angry. I talked to both clients and explained the concerns on both sides. I suspected that because the clients had been friends, a joint session would be important at some point in the mediation. After obtaining both sides agreement to have a joint session, I asked both attorneys to keep their comments factual, not emotionally charged or argumentative. The joint session was helpful, an efficient use of time, and allowed the parties to begin negotiating more quickly than usual. Hours were saved because they heard the concerns from the other side, and did not spend time questioning me about the other sides motives, concerns and priorities. After the negotiation was over and the documents were signed, the parties met again and thanked me for the manner in which the mediation was conducted.
In another case, the clients insisted they must remain separate. However, as the negotiation progressed, they wanted to speak to each other in a controlled setting. They were in a lawsuit that had lasted more than 4 years regarding property. They attended church together, and they were neighbors. They wanted to clear the air. The joint session was warm and friendly. Attorneys were not present. The clients were able to resolve the dispute in a manner neither side had discussed privately, but resulted from joint brainstorming.
I think about these stories when I listen to attorneys casually discussing the mediator selection process. They are clearly interested in mediators that their clients like and trust. They do not like mediators who tell both sides simultaneously that their case is weak and don’t identify real weaknesses. And, they do not like mediators who lie. They like mediators who listen to their clients and yet move the process along, despite long-winded, unfocused, emotional or entrenched clients. They also much prefer mediators who “get it done”. And, they appreciate prepared, organized mediators with the ability to use different skills depending on the case.
If you take time on mediator selection, you will likely experience an efficient effective mediation process that results, more often than not, in a solution that both sides actually feel ok about.