How to Select a Case Appropriate Mediator

Factors to Consider Finding the Right Mediator

Mediation is a dispute resolution process that is now more popular than arbitration. Many contracts require parties use mediation, if a dispute arises; and courts have adopted the use of mediation to help reduce the number of cases headed to trial. Yet with all this popularity, there remains a significant problem with using mediation: getting the “wrong” mediator. Selecting the “case appropriate mediator” saves resources and increases the probability of settlement. This article’s focus is on what to consider when selecting an appropriate mediator.

[su_pullquote align=”right”]Resources:

Experts, Mediation, and Confidentiality—How to Avoid Mistakes

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Mediation is a dispute resolution process that is now more popular than arbitration.  Many contracts require parties use mediation, if a dispute arises; and courts have adopted the use of mediation to help reduce the number of cases headed to trial.  Yet with all this popularity, there remains a significant problem with using mediation: getting the “wrong” mediator.  Selecting the “case appropriate mediator” saves resources and increases the probability of settlement.  This article’s focus is on what to consider when selecting an appropriate mediator.

Critical Considerations

Finding the right mediator for each unique case requires asking questions.  At a minimum every potential mediator needs to be interviewed.  Just accepting the name of a mediator that someone else used is not enough.  The mediator, who was right for one case, may not be the best person for the next.  In addition to reviewing a resume or going to the mediator’s website, there are five significant areas to explore: mediation experience, subject matter understanding, process management, logistics and cost.

Experience

Few states have uniform standards for mediators.[1]  Previous professions do not ensure that a person is a skilled mediator.  Many people are lulled into thinking a person is qualified as a mediator, merely because the prospective candidate lists a degree or title they obtained from a previous profession.  Just because someone has practiced law for thirty years, is a psychologist, accountant or other professional, or is a retired judge does not mean they are trained as a mediator.[2] Individuals holding themselves out as mediators need to be specifically trained in the process.  In addition to training, actual “hands-on” mediation experience is essential.

Having experience managing the mediation process is critical, so that the mediator has had an opportunity to utilize all the skills learned, and more importantly, when to integrate those skills in the process.  Without practice, it will be hard for a person to break old habits.  For example, individuals who have had distinguished careers in decision-making professions, such as law or management, have a more difficult time letting people make decision for themselves.  A hallmark of mediation is party empowerment: the parties get to decide what is best for them.

In addition, it is beneficial to consider mediators who have significant training in communication, collaborative problem solving, negotiation and fundamental skills: the ability to build rapport and develop trust.  Parties come into the mediation not trusting the other side, so it is imperative that they trust the mediator and the process.  When interviewing potential mediators, consider the following questions:

• Were you professionally trained? When?  By whom?  How many hours of actual instruction time were included?
• How much experience do you have mediating similar cases?
• How and by whom were you evaluated as a mediator?

Subject Matter Understanding

It is not enough to be trained in the mediation process, have additional skills and experience actually mediating cases; the mediator needs to have subject matter understanding.  The mediator does not need to be an expert, but without subject matter understanding the mediator is essentially taking people on a journey without a map.

How can people effectively mediate, when they are not familiar with a particular industry?  How can they ask appropriate reality-testing questions?  How can they assist the parties during the negotiations, when they are unable to grasp the significance of an exhibit or the expert’s findings?  It is unlikely that if someone presided at traffic or family court that he or she has a sufficient understanding of construction industry standards, let alone appreciates the significance of an expert’s report dealing with the contributing factors to a failed foundation.

Do not forget, mediators specialize in certain practice areas, such as family, employment, construction, intellectual property, etc.  Selecting a mediator, who specializes often produces better results than selecting one who says, “I can mediate anything.”  Initial questions might include:

• What areas of expertise enhance your mediation experience?
• What types of disputes have you mediated?
• Have you mediated cases where the number of parties, complexity, issues and amounts in dispute are similar to this case?

Process Management

What exactly is the mediator going to do?  First, does the mediator understand the differences between mediation, settlement conference and arbitration?  Simple question, but a number of individuals say they are mediators, were even trained, and yet, once they get into the case, they develop opinions and attempt to coax or coerce people into settlement.  Their egos get involved and they want to be able to say, “I mediated 100 cases, and I settled 99 of them!”

Second, does the mediator have a track record of remaining neutral?  Do former mediation participants feel that the mediator was fair and unbiased?  Would they use that particular mediation again for a similar case?

Third, how does the mediator manage the process?  Even before the “face-to-face” mediation session begins, the mediator needs to be engaged with the participants.  Mediation is a facilitated negotiation, so coming prepared is very important.  Experienced mediators will ask that the parties submit a “brief” outlining the issues to be resolved.  This does two things, it assists the mediator to prepare for the case, and it helps ensure that all of the participants come prepared.  Never enter mediation, or any negotiation, unprepared, hoping the other side brings you an acceptable offer.  Remember, there is no such thing as a “tooth fairy”.  Mediators, who do not give preparation assignments to the participants, are less likely to be effective.

The mediation process is simple: opening remarks (mediator and participants), negotiation (problem-solving) and resolution (agreement).  Typically, the mediator will make a brief statement, outlining the process, behavioral guidelines, communication (private meetings with the mediator or caucus) and confidentiality.  After the mediator’s welcome, the participants are given an opportunity to identify the issues they want resolved.  This is not a time to attack the other side, just outline all topics that need to be discussed and resolved.  Does the mediator have the participants in the same room for the opening remarks?  Is each side given a chance to outline what they want resolved?  If the answer is “no,” be on the lookout for a mediator who does not know how to effectively manage the process, and who has an aversion to any humanizing of the discussions.

The majority of the mediation time is spent negotiating.  Sometimes the mediator separates the parties (caucus) and then runs back and forth with messages, offers and counter offers; but this indirect type of negotiation is where the participants lose control.  They have no idea what is being said to the other side, or what the other side actually thinks—even worse, many participants labor under the mistaken belief that the mediator is their advocate.

Remember one of the fundamental principles of negotiation: face-to-face discussions tell you more.  Only seven percent of a communication is the actual words.  That means that ninety-three percent is non-verbal: eye movement, facial expressions, and other body language.  A skilled negotiator will not want to miss a significant part of the message.  Was there a furtive glance between counsel and client?  Did the expert have to constantly check his notes?  Did the insurance representative cough?  Did someone’s face flush or did she grow pale when a particular offer was made?  What other subconscious or negotiation signals are missed when the mediator is merely a messenger?

The final phase of mediation is drafting the agreement, and if it is late at night or people feel that they have been rushed, it is prudent to schedule a second session, with time to draft a settlement that fully addresses all the issues negotiated.  Rushing to settlement often leads to buyer’s remorse, which, in turn, leads to unfulfilled settlements.  Remember that settlement agreements are contracts and need to be in writing, and signed by all stakeholders.  Try to select a mediator who allows sufficient time to negotiate and to draft a comprehensive settlement agreement.

More interview questions might include:

• How do you view your role as an impartial neutral?
• How would you describe you process management style, including use of caucus?
• Do you have a bias or strong belief regarding this type of case or any of the participants?
• How do you handle drafting settlement agreements: is it done at the mediation; do attorneys draft after the session?
• What safeguards do you have in place to prevent buyer’s remorse?

Logistics

This topic includes all the details for scheduling and related documents.  Mediation is a confidential process.  Believing what is said in mediation will remain private enables people to admit they made a mistake, or to apologize, or to be more candid in their negotiations.  Although there is virtually no uniformity in confidentiality statutes, typically criminal activity, child abuse and similar crimes are not protected.  Understanding what is and is not confidential is important.  For example, does the cloak of confidentiality protect attorney or mediator malpractice? [3]

Another hallmark of mediation is that the mediator is to be and remain impartial.  When interviewing mediators, it is important to determine if they know any of the parties, their counsel, insurance carriers or anyone else involved with the case.  All association, including professional, financial and social, must be disclosed.  This does not mean that just because a mediator handled a case involving a particular insurance company, some three years earlier, cannot remain impartial.  It is best to find out all associations before the mediation starts.

Scheduling is important—availability of the mediator is a significant factor.  Typically, one of the benefits of mediation is that it is faster and can start soon than trial and other forms of dispute resolution.  If the mediator is not available for months, then one of the benefits of mediation is lost.  Mediations need to be scheduled far enough in advance, so all necessary parties are available and have time to prepare.  Discussing everyone’s schedules before contacting the mediator also saves time.

What is a realistic amount of time to set aside for the mediation: is half a day, a full day, or are multiple sessions required? An experienced mediator can provide an estimate of the time needed based on number of parties, nature of the case, and types of issues involved.  Most two-party, contract cases that involve few issues can be resolved in a half to full day.  Large, multiparty, complex cases may need several full day sessions.  Family cases are typically mediated in short sessions, a couple of hours, and only one issue is addressed in each session.  Appellate mediations, ones following a trial that determined a “winner” and a “loser,” can easily take a full day.

Questions to weave into the interview might include:

• Can you explain confidentiality and do you use a written confidentiality agreement?
• How available are you?
• Do you know any of the participants, attorneys, or other parties involved in this case?
• How much time should this mediation take?
• What other resources, such as a mediation facility or support services, do you provide?

Cost

Cost can be a consideration.  Some court-connected mediation programs provide mediators at a reduced fee or require all or part of the mediation to be pro bono.  Fees must be disclosed in advance, including how they are split, and if there are administrative, processing fees, travel, support staff charges and related costs.

Typically, mediators charge by the hour or the day.  Some mediators use a sliding scale, depending on a participant’s ability to pay, or if a governmental entity or non-profit is involved.  Understanding what work is covered by the fee and if there are any other expenses or charges is important.  Some mediators and mediation organizations will add an additional fee for scheduling the mediation.

It is not ethical for mediators to base their fee on the amount in dispute.  In most situations the parties split the fee evenly; however, to encourage people to mediate, some insurance companies and even large corporations will offer to pay the mediator’s fee.  If this type of fee arrangement is used, be sure to have a voice in the selection of the mediator.

Additional questions to ask:

• What are your fees and what is included?
• How is the fee allocated between the parties?
• What other fees and/or charges will be associated with this case?

Conclusion

Finding the right mediator, who is appropriate for the specific case and participants, is important.  Asking a few questions in advance will go a long way to making the experience worthwhile.  Never be afraid to ask questions.  Insist on a say is the qualifications for the mediator.  Requesting references is often overlooked and could provide important insight.  Remember to contact the mediator sooner rather than later to avoid higher discovery costs and when people are not as polarized and business relationships can be salvaged.

This article was previously published in The Value Examiner, November/December 2014.

[1] Florida was the first state to initiate standards and competency qualifications for mediators.  Be aware that some mediators claim to be “certified.”  Fewer states actually “certify” mediators.  Typically, the mediator making the claims has only received a of course completion.  Be sure to inquire about the “certifying” entity, actual mediation training, and remember that forty hours is a minimum amount of time to acquire skills.

[2] Yeend, N. N., “Beware the ‘Hallelujah’ Mediator,” Plaintiff ’s Magazine, September 2012.

[3] The Value Examiner will feature an article on mediation confidentiality in the March/April 2015 issue.

Nancy Neal Yeend founded The End Strategy (TES), a Portland, OR-based dispute management and mediation firm. Ms. Yeend is a seasoned and accomplished professional, as well as a prolific writer, with a focus on conflict management and resolution. She is adept at developing programs for business, governmental entities, and not-for-profit organizations involving workplace related conflict. In addition, she is a skilled trainer and experienced course designer, specializing in communication, negotiation, problem solving, and dispute management. She mediates business and contract related matters at all stages of litigation: pre-suit, trial, and appellate.

Ms. Yeend can be contacted at (503) 481-2986 or by e-mail to Nancy@TESresults.com.