AUTHOR: KENNETH A. RYDER
Mediators come in all shapes and sizes. How to choose the best one?
Remember, mediation is a tool to help the parties resolve a dispute on their terms. The best mediator for a particular dispute is the one who is able to help the parties and their lawyers reach this goal. Just as every client is different from every other client, and every case is different from every other case, no single mediator is appropriate for every case. Perhaps the most important decision for resolving a dispute through mediation, is to choose the appropriate mediator for the dynamics of that case and its parties. Some factors you should consider include the following:
· Do you need a mediator who generally uses an evaluative style or a facilitative style? An evaluative style – in which the mediator acts more like a neutral evaluator or arbitrator, often hammering on each side over the weaknesses in its case to try to push the parties towards a middle ground – is sometimes an effective mediation approach. In cases where the parties have no prior or ongoing relationship (such as a typical car accident), this style may well be most appropriate. However, in disputes where the parties have an ongoing relationship – such as, for instance, a dispute between neighbors – an evaluative style may actually be counterproductive. In situations where parties need to maintain an ongoing relationship, a facilitative style of mediation is often more appropriate and productive.
· Do you want a judge? Especially when seeking an evaluative style of mediation, many attorneys believe a retired judge is the best choice for a mediator. Remember, however, the background and experience of judges is to decide cases for parties; but in a mediation, the goal is to get the parties to agree between themselves on the best resolution for them. Hence, analyzing the parties involved may help determine whether a judge is really the most appropriate mediator for a particular case. When (i) mediation is to be conducted early in a case, before there has been a lot of discovery and evidence needed for a fruitful evaluation, and (ii) the parties are sophisticated and creative, a mediator who can tap into that creativity of the parties, rather than someone who is more decisive in style and approach, may be the better option for a mediator.
· Should you have a mediator with subject matter expertise? Are the legal issues in a case complex? Does one party seem to have the law on its side, while the other party has “right” on its side? In such cases, the more effective mediator may be the one with subject matter expertise on the issues. For example, in real estate disputes, a mediator with experience in real estate law and practice may be the best choice to understand the law at issue, as well as to help the parties search for alternatives to help them amicably resolve their dispute. Certainly, a mediator experienced in the particular law and type of matter in issue will have the most knowledge on options and courses of action the parties might consider for resolving their dispute.
· What personality type will best “mesh” with the parties and their counsel? Do you need someone more forceful? Do you need someone more sensitive? An evaluation of the personality styles of parties and their counsel is important in selecting a mediator who will be more effective in helping these personalities overcome their differences to resolve their dispute. Would a male mediator be more effective than a female mediator, or vice versa? If one of the parties is of a particular ethnicity, would a mediator of similar ethnicity or cultural background be more effective with that party? Alternatively, would a particular ethnicity of a mediator be ineffective with a party in the dispute?
· Have you worked with the mediator before, or even talked to the mediator? Interviewing prospective mediators is one of the best methods to determine whether a particular mediator is right for your case. Quite frankly, most mediators would welcome the opportunity to talk to the lawyers and parties about their dispute, how that mediator might be able to help them reach a satisfactory resolution, and whether there is a “fit” between the mediator, the parties and their counsel to have an effective mediation.
· What is the work ethic of the mediator? The most effective mediators take the time and interest to prepare for your case. A mediator who is not prepared is at a great disadvantage. Accordingly, if a prospective mediator is too busy or does not have the time or inclination to properly prepare for your mediation, the chances of your mediation being productive are greatly reduced.
Choosing the right mediator is one of the most important steps in achieving an effective mediation for the resolution of a case. Take the time and effort to find the right mediator for each case.
Mr. Ryder specializes in real property law with an emphasis on commercial development, leasing and institutional lending. He is also a mediator with the Dispute Resolution Services Program of Orange County’s Community Service Programs (CSP), having trained with both CSP and with the Strauss Institute for Dispute Resolution, Pepperdine University School of Law.