{3:45 minutes to read}
When going forward in mediation, quite often the parties have the opportunity, at least in the first instance, of choosing the mediator. This raises some questions:
- What type of mediator are they looking for?
- What skills should the mediator have to best enable him or her to help the parties resolve the dispute?
There are some characteristics in a mediator that everyone should agree upon. At the very least, the mediator should be trained in the skills of mediation. This may sound simple, but it oftentimes may not be. Good mediators have very specific skill sets that they will bring to each mediation, which they have developed through training and experience. Those skill sets should not be underestimated. It is why, for example, some very good lawyers and highly experienced judges may be great lawyers and great judges, but perhaps not great mediators.
What the mediator will try to do is to help the parties agree upon the issues in conflict and help move towards resolving them. This is different than advocacy and different than sitting on a bench and simply deciding a case. Certainly, you want a mediator who is prepared, diligent, patient, and dogged; you want the mediator fully invested in the process. And you want a mediator who does not, or does not easily, accept “no” for an answer and simply walk away.
Mediators have different approaches. Some are purely facilitative, while others are partly facilitative and partly evaluative. There is, of course, a wide range in “partly facilitative” and “partly evaluative.” Depending on the type of dispute and the preference of the parties, one approach may be more desirable than others.
When interviewing a candidate for mediator, ask what his or her approach is. Also, if possible, ask around to others who have used the mediator. Remember, the mediator plays a key role in the process. As long as you are going to mediation, why not select the mediator whose approach is one that the parties feel most comfortable with, and one that has the best chance of success?
A subject that is often a source of discussion and varying opinions amongst mediators, lawyers, and even many clients is whether the mediator should have subject matter expertise. There are some people, including many skilled mediators, who feel that subject matter expertise is not important at all; that simply having great skills as a mediator and being diligent is sufficient to enable that mediator to assist the parties in any dispute.
There are many others that feel, while mediators may be able to handle a broad variety of cases, there are some types of cases that absolutely require specific expertise. Employment lawyers and their clients may prefer mediators who are fluent in labor law. Patent and trademark attorneys and their clients may prefer mediators who have experience in intellectual property. Other areas of specialization can include construction disputes, taxation, and matrimonial and custody disputes. This is a consideration that should be given great thought by the parties and their attorneys.
There are many resources that parties can use to select the best mediator for their dispute. These include listings by the courts and service providers of the backgrounds and expertise of potential mediators. And, of course, the parties can and should follow-up on the information they obtain, so that they can make the right selection.
Contact me with questions or comments.
