So, you’re going to mediation. Now how are you going to pick a mediator? This can be one of the most important factors in determining whether your mediation is going to be successful so it’s worth giving some attention to the factors worth considering in making your choice.
Of course, neither plaintiff nor defendant alone can dictate which mediator to choose. The mediator must be a mutual choice. But that being said, the question is what sort of mediator is likely to do the best job in any given case?
It really makes no difference which company a mediator is affiliated with, as far as we’re concerned. What’s important is the mediator him or herself – what knowledge and background does he or she possess and how well suited will they be to help guide the parties towards a resolution of the case?
It’s also worth noting that it is not uncommon for mediators to do their own outreach and independently contact the parties about a particular case. We actually find this can be helpful sometimes since in order to be effective a mediator is best positioned as a truly neutral voice, not beholden to either plaintiff or defense.
When it comes to the requisite knowledge, qualification or background that a mediator should possess, we typically give weight to the following major factors:
- Domain expertise: Depending on the type of case that we’re dealing with, there may be a significant value in turning to a mediator who has extensive knowledge and experience in the specific area that relates to the case. The best example of this would be a medical malpractice suit that deals with complex treatment issues in a specialized field of medicine. A mediator with knowledge in that specialized field is much more likely to be able to penetrate the jargon and grasp the subtleties and the merits of the case.
- Background in Insurance: When it comes to personal injury litigation the defendant will often have multiple layers of insurance coverage, and each carrier will need to participate in coming to a settlement. Facing that sort of situation we often find it will be most productive to turn to a mediator who has background or extensive experience dealing with the insurance industry,understanding the layers of insurance, indemnification and co-parties contract issues as well risks of exposure. Sometimes it takes a special gift to be able to get inside the head of a claims adjustor.
- Legal nuance: It’s also important to consider the disposition of your case when you’re about to head into mediation. Has summary judgment already been granted and the only thing left for decision is damages? Does the case involve economic damages that some mediators may grasp better than others and push to a final resolution? Or are there particularly thorny legal issues that remain to be sorted out in connection with a determination of liability? In these situations we think it will usually make sense to turn to a mediator with a strong background in the courtroom – either a former judge or trial attorney – who will be most adept at sorting through the legal issues.
- Relationship to the Parties: It’s not uncommon for the litigating parties to propose the use of a mediator with whom they have had prior positive experience or business connection of one kind or another. Many plaintiffs’ counsel we know are strongly inclined to steer away from using a mediator who has a strong connection to their adversary or insurance carrier for fear that this bias will show through in the results. However, in our experience, using a mediator who has the complete confidence of the defendant can sometime work out quite well. This may be particularly useful when the plaintiff has a strong case and really sees little risk in going to trial. The defendant may have an easier time settling on terms favorable to the plaintiff when they hear the bad news delivered from a well trusted source.
These are the major factors that you want to weigh into the decision making process in selecting a mediator. But beyond that it also pays to learn as much about the background of the mediator as possible before making your choice. You don’t get to pick your judge but when it comes to mediation this is a unique opportunity to make a choice that often significantly influences the case’s ultimate outcome.
Frankly, this is one of the areas where we can play a very helpful role with our clients. Since we are involved in hundreds of mediations over the course of each year, we have a broad base of experience and deal with a much wider range of neutrals than the typical personal injury lawyer or firm. Since there’s no equivalent of a verdict database to help evaluate a mediator’s track record, our broad base of experience can provide a useful edge when it comes to making a selection.
In any event, choosing the right mediator is crucial. Keep these factors in mind and try to pick a mediator with the background best suited to the specifics of each case.