As both a busy mediator and the head of an organisation providing the services of a group of mediators, I am curious about what drives litigation lawyers (for the choice seems usually to be theirs rather than their client’s) to choose one mediator over another. This is not just idle curiosity because part of our service is to provide a consultancy service: we try to match the right mediator to the type of case and the people involved. We want to maximise the chances of a successful outcome; that is to say, the best chance of the dispute being settled.
I was once talking to the CEO of one of the largest mediation providers in the USA. I remarked on the number of former judges on his roster and we discussed the difficulty of a judge making the transition from handing down judgments to becoming the facilitator of a negotiation. We undoubtedly shared the view that few could achieve the change successfully. However, “if the market wants judges, we give ’em judges” was the emphatic conclusion.
So what are my case administrators to do when a caller says, “We’re looking for a lawyer mediator,” or even more prescriptively, “We want a QC to mediate this case”? Or even, as occasionally happens, “We want a mediator who is not a lawyer”?
One of the busiest and most highly rated mediators in the UK is also a lawyer: she is a partner in a firm specialising in insurance litigation and in that role she hires mediators on a regular basis. She tells me that being a woman and a lawyer are the least important attributes she has as a mediator. By the same token, the QC tag in mediation, she says, is entirely unimportant. Heaven forbid that anyone should introduce her as “one of the most successful female mediators in the UK”, as has happened before. Her objection has little to do with political correctness, it’s just that her gender is irrelevant to her ability as a mediator.
In the early days of mediation, there was a move by some lawyers to form groupings of lawyer-mediators. More recently some mediators have tried marketing themselves as non-lawyer-mediators. Both have presumably felt that their either being or not being a lawyer gave them a marketing advantage. Both, it seems to me, miss the point. The non-lawyer who is a mediator will need to become something of a lawyer in order to understand the legal process and the legal arguments which underpin any risk analysis, and the lawyer mediator will have to understand the commercial drivers for settlement and spot the negotiating opportunities.
So here are some thoughts on choosing the mediator.
- Rather than refusing the other side’s choice out of hand, try to find consensus around a mediator who has the right experience, personality and qualifications. Find out whether any of your choices have worked for the other side before. Some people might feel that a mediator who has worked for the other side before is likely in some way to favour that party. But bear in mind that the mediator is not in a position to make you or your client agree to anything you don’t wish to. On the contrary, an existing acquaintanceship between the mediator and your counterparty can be a distinct advantage as he/she will be able to hit the ground running, not needing to build trust where it exists already.
- Consider the mediator’s training and experience. Is the mediator in practice in that role part-time or full-time? How many mediations does he or she conduct from year to year? Never be afraid to ask. It is well known that in any profession an individual can progress from conscious incompetence as a novice through various gradations up to unconscious competence as an experienced practitioner. Equally as time goes by, the veteran can slip over the top into unconscious incompetence unless he or she is constantly honing mediation skills. A commitment to continuing professional development is as important in mediation as it is in other professions.
- Does the mediator have both patience and tenacity? The will to work for the settlement when the going gets tough and the problems seem impenetrable distinguishes the good mediator from the indifferent. It’s not a bullying and cajoling approach to finding settlement that is required, but a constant searching after new options and outcomes even when coats are being put on and bags packed. How will you know about these attributes in a mediator you haven’t used before? Consult those who have used the mediator, don’t hesitate to ask for references and ask the case managers about the mediator’s strengths and weaknesses.
- Consider the personalities involved in the case: your own client, the claimant/defendant on the other side, the opposing advocates. Some cases clearly need an empathetic approach where there is high emotion – especially true of inheritance cases and disputes involving a family home - where others may need a more authoritative approach. No two cases are the same and a mediator who is good for one may be less so for another. However, the very best mediators have the skills to be chameleon-like, adopting a variety of styles at different times in different rooms without ever seeming to lack sincerity.
- Consider the subject matter of the dispute. It is a truism that a mediator can mediate any dispute – it’s the mediation skills that count. But that is not to say that the participants in a mediation will be happy to have as mediator someone unfamiliar with the ‘language’ of the dispute. As Joanna Kalowski, the Australian mediator and trainer, said: “To do clinical negligence work, you really need to be able to speak ‘hospital’.” It’s no accident that, my former career being as a chartered surveyor, about 60 per cent of my caseload is connected to property and construction; but I have learnt other languages too, with a reasonable degree of fluency. Other mediators will also have extended beyond the boundaries of their former profession. The key is the comfort of the participants and whether they have confidence in the mediator’s ability to understand the issues that are important to them.
- Would the case benefit from the skills of more than one mediator? Where significant sums are at stake and there are multiple parties, co-mediation can help to move things along where they might otherwise get bogged down. I recall a case with seven parties and 48 people in attendance. It is hard to imagine how this could have been handled without two mediators when half an hour spent with each party means a gap of over three hours until a party next sees the mediator.
- Ask to interview the mediator before you decide. Most mediators can provide testimonials, but these only go so far. You will only be shown the good reports. If you want a better feel for whether the proposed mediator is right for your case and your clients, why not ask him/her in for an interview, or at least have a conversation on the telephone about such things as personal style and past experience. At In Place of Strife we positively encourage contact with mediators as part of the selection process.
The overall message is: don’t treat mediator selection lightly; do your research, including seeking advice from In Place of Strife’s case administrators or other providers; ask colleagues, as there’s nothing like first-hand experience; and speak to the mediators themselves. Above all, there is no excuse for simply accepting whoever is proposed without enquiry. The mediation is too important an opportunity for your client for mediator choice to be treated lightly.