(Adapted from John Bickerman's "Picking the Right Stuff" in The Legal Times, September 11, 1995)
Selecting the right mediator may make the difference between a satisfied and unsatisfied client. While not every case that is mediated can be settled, you can take several common-sense steps to ensure the greatest chance of mediation success.
Experience and Competence
In selecting a mediator, first examine experience and competence. In part to preserve uninhibited entry into the field, neither the American Bar Association nor the Society of Professionals in Dispute Resolution (a professional association of mediators and arbitrators) has established programs to certify or license mediators, although a few states do have such requirements. Consequently, in most jurisdictions, almost anybody can call himself or herself a mediator.
Mediation "flight time" can be a useful tool to assess the experience of the prospective neutral. How many hours of actual mediation experience does the mediator possess? On what types of cases has the mediator worked? Has the mediator been paid for his/her services, or did s/he volunteer?
Another predictor of competence is the quality and quantity of the mediator's training. In particular, you may want to examine whether the mediator has received any formal training, and if so, how recently. New mediators are increasingly gaining further training through co-mediating cases with experienced mediators. Many full-time mediators also teach mediation. A professional mediator who conducts training on a regular basis may benefit from the most rigorous training experience of all -- the constant challenge presented by students learning this new discipline.
Checking References
In assessing competency, no one factor is determinative -- there is probably a long list of bad attorneys who have had excellent training and a longtime practice. Just as you would not hire a plumber or contractor without checking references, checking a mediator's references is enormously important. Ask for the names of parties for whom the mediator has mediated, particularly those in the most recent case. Check both defendants and plaintiffs. Ask the mediator to provide references both for cases that have not settled as well as for those that have been resolved. If applicable, also talk to any mediators with whom the prospective neutral has co-mediated cases.
Mediators Affiliated with Law Firms
Those inexperienced in ADR may prefer a mediator affiliated with a law firm out of a belief that a neutral unfamiliar with the specific area of relevant law cannot be effective. However, those affiliated with law firms tend to only dabble in ADR. Although familiar with legal issues, many of these practitioners lack the experience necessary to manage the mediation efficiently or to get the parties to the table to settle their dispute. In addition, these mediators' primary practice of law may prevent them from devoting the time and attention essential to high quality service. These factors may be especially important in complex or "high stakes" cases where parties cannot afford the cost of multiple counsel engaged in protracted mediation.
Strategic Considerations
Mediation is a wonderfully flexible process that can be tailored to the needs of litigants. Mediation styles vary, so choose the mediator that best fits the case, as well as the personalities of the attorneys and the parties. Selecting a mediator can and should involve a significant amount of strategy, as the choice can make a difference in whether a case settles. Because the ADR field is expanding so rapidly, special care should be given to making the right choice.
