The maturing market for dispute resolution recognises that mediation (along with arbitration, collaborative law and other Disruptive Resolution™ processes) offers significant advantages over litigation. This recognition inevitably leads to increased demand for mediators. Increased demand results in increased supply. When a dispute occurs and the opportunity to choose the appropriate mediator appears, the question arises: “How do we choose the mediator?”
A recent survey ranked lawyers’ preferences in choosing a mediator.
In a survey published a few years ago by a major international mediation advocacy organization, lawyers’ responses identified these factors in determining why they chose a particular mediator:
Availability; Professional reputation – experience/status; Experience in the subject matter; Fees and other costs; Professional reputation; Mediation style; Professional background/qualifications; Location.
The low ranking of cost may reflect a homogenous marketplace.
Professional reputation and experience remain near the top, but the high ranking of availability may reflect a changing market. Mediators, like other service providers, are not immune from market forces. Mediators cannot be in more than one place at the same time, and mediators’ fees, ranked number four in this survey, may be “inelastic,” as economists say. Mediators with higher fees may price themselves out of work. The lower ranking for mediator’s fees possibly reflect that fees are of less importance to lawyers and law firms and often reflect average billing rates for the lawyers themselves. For pro se parties considering, for example, divorce mediation, cost may be more important. Nevertheless, if cost were to appear at the top of the list, this might risk a decline in standards, which in turn might threaten to reduce the benefits of mediation. This lower ranking may also reflect the fact that, outside of a few “national” mediators with wide name recognition, mediators’ fees in a particular locale may not vary appreciably.
Let’s get mediation approaches out of the rut.
As the alternative dispute resolution market matures, it also stagnates. Approaches to mediation have narrowed in some parts of the country, and unquestionably in the jurisdictions of my practice, into a rut. In the 1990s, virtually every mediation began with a joint session with opening statements by counsel. Today, advocates seem to have reached a consensus that both joint sessions and opening statements just “make things worse,” by hardening old resentments and forming new ones. Many advocates say they prefer “all caucus” mediation. While some disputes may not benefit from some joint session and “getting acquainted” time, most can benefit from an effort by the mediator to acknowledge the participants’ humanity and to recognize that mediation’s purpose is problem-solving, not defending entrenched positions.
Let the forum fit the fuss.
Mediator style and flexibility may deserve higher rankings in the survey. The mediator should be capable to adopt his style to suit the parties’ needs. As some dispute resolution practitioners say, “let the forum fit the fuss,” or, in this context, let the form fit the dispute and the parties. Some parties may be unable to resolve a dispute without the prodding intervention of an evaluative mediator who suggest solutions; other parties may need the facilitative approach, where the mediator encourages the parties to negotiate. Mediators and parties don’t always have to follow the same approach, even within a mediation. Some disputes may lend themselves to multiple short mediation sessions in which the parties and mediators focus on just one aspect of the dispute, in the manner of collaborative law. Others may lend themselves to the mediation-arbitration approach, or “med-arb,” where the neutral expends significant effort bringing the parties closer, then becomes a neutral arbitrator.
Mediators frequently ask counsel in the course of mediation, particularly where there is an impasse, to give them a range where they think the case will settle, or to tell them what they think the other side would settle for. Often the mediator will then tell the parties they are closer than they may think (if it’s true) and that they should continue to try to make progress. Another technique for breaking impasse is to offer a mediator’s proposal: if the other side would agree to settle for $X, would you also agree? But another approach, perhaps too little utilized, is to agree to use med-arb but to use “baseball arbitration,” or labor arbitration, where the arbitrator asks each side to put their best number on the table (and defend it), and the neutral then chooses one or the other.
Each mediation is unique, with different issues, different dynamics between the parties, different matters and economic factors at risk, and different influences on the parties. The experience of the mediator thus may be more significant than cost, and not merely the mediator’s work as a mediator. Parties should consider mediators’ training (including its breadth and depth), experience as a client, as a party representative, as an observer, as an assistant, and as a co-mediator as well. Some mediators are active in pro bono community mediation or low cost mediation in lower-level courts. This sort of mediation often demands a high degree of empathy with the parties, an appreciation and respect of the culture, and patience.
The mediator’s fees may be less significant than other considerations.
Among larger law firms as among general counsel offices in large corporations, there is a temptation to choose a “heavyweight” (usually translated as “expensive”) mediator as well as “frequent flyer” mediators. But there are disadvantages to these approaches. The mediator with a national reputation may be in high demand and thus unavailable; their fees may be higher than the market average due to higher demand; and the “heavyweight” mediator may not have the best background of experience in the subject matter or knowledge of the parties’ businesses. If there is any doubt on suitability there is no harm in telephoning or interviewing multiple candidates and making an assessment, particularly where the matter is a “big dollar” case. In the case of the mediator frequently used by one or both parties, the mediator may have, consciously or unconsciously, adopted a template for proceeding which may be inappropriate or ineffective for the new matter. “Heavyweight” mediators are often also retired federal or state court judges, who, in the experience of most lawyers, are more likely to utilise an evaluative approach to mediation, even though a facilitative approach may be more appropriate for some mediations.
If cost is a concern, all professional mediators will provide full details including the fees for pre-reading mediation material, speaking to all the parties and/or their legal representatives and confirming the mediation time allocation and overtime fees.
Parties should choose a mediator who has been trained specially in mediation to industry-accepted standards. Certification or registration by the mediator’s state bar and membership in local bar alternative dispute resolution groups are important if not essential. Membership on the mediation roster of national dispute resolution forums such as FINRA (the Financial Regulatory Authority) or the American Arbitration Association means that the mediator has met training and experience requirements for those organisations.
Subject matter expertise sometimes deserves top ranking.
A common concern is whether the parties need a mediator with subject-matter expertise or knowledge of the industry. For certain disputes, speaking the same language is a major benefit. For specialised fields such as securities mediation, it makes sense to employ mediators who have knowledge and experience in the industry. In some instances, mediators who have actually worked in the industry may be beneficial. For example, if you have an options trading dispute, it would not boost the parties’ confidence if the mediator does not understand options trading. Moreover, educating the mediator may waste the parties’ time. Specific knowledge can make the mediation process more efficient and enable the mediator to focus on the key issues in the disputed. In some matters, however, the parties may prefer a mediator with no specific knowledge to avoid preconceived notions of a possible settlement.
Cultural sensitivity may be growing in signifcance, while location is less important.
The selection of mediators may also be driven by their understanding of cultural issues, or the actual location of the mediator may be important to the parties. With telephone and video conference facilities now being used as an alternative to conference-room mediations, the possibility exists of selecting the preferred mediator without regard to location. At the Gregory Law Firm, we offer “virtual mediation” through technologies as simple as telephonic mediation and as complex as multiparty video conferencing.
Tenacity matters.
The aim of mediation, of course, is to facilitate settlement, so the mediator needs to keep the negotiation moving until each party’s best negotiating position is on the table. Successful mediators are tenacious and will not give up and adjourn the mediation merely because the parties are too far apart. They must be prepared to change their approach from facilitative to evaluative to transformative as necessary to reach a settlement. Many successful mediations have started where the parties were millions of dollars apart with their settlement offers. Mediators should possess the skills to break impasse and keep the parties talking.
Selecting the right mediator involves consideration of a number of criteria. Whether the subject matter is employment mediation, securities mediation, divorce mediation, professional fee disputes, or mediation of business disputes, the Gregory Law Firm is able to provide mediation services in Alabama and elsewhere, in person or through virtual mediation. Please review our website at https://gregorylawfirm.us/ or call us at 205-314-4874. When you call during business hours, you will almost always be able to speak with an actual person or with Steven Gregory himself.