Choosing a Good Mediator: Part I

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Over the last six months, we’ve had the opportunity to interview a dozen of our colleagues, mostly attorneys, all of whom have regularly hired mediators.  We thought we’d take the guesswork out of the mediator selections process and share some of our findings that were compiled from many hours of interviews.

During the course of our interviews, we were able to identify patterns that could be divided into two categories. First, there are the essential elements that characterize a successful mediator. Second, there are the intangible factors that give the mediator the ability to engender and inspire trust with all of the parties.  In this article, we will focus on the nuts and bolts or the essential elements that characterize a good mediator.

There are many qualities that make a good mediator. Not all attorneys possess the essential qualities to become a good mediator.  Further, few judges have the essential qualities to conduct mediations that produce successful outcomes.

The Essential Elements.

Many litigation attorneys have a recurring need to hire good mediators. Here are some common factors that are important in the decision-making process. The mediator must have a number of necessary skills. Ideally, the mediator will be very experienced in many aspects of law: such as commercial litigation, health care, real estate/land use, construction, civil rights, employment practices, and personal injury.

Credentials.

Many of the attorneys we interviewed mentioned that a good mediator must have the right credentials: strong education, significant law practice experience, and a solid reputation in the community. Reputation was cited as one of the most important factors in the selection process. The same short list of mediators, who are considered to be at the top, tend to work frequently. Aspiring mediators are not contenders unless there is a critical shortage of choices among top mediators. Most attorneys who hire mediators prefer to rely on reputation—and only choose those mediators that other attorneys consider to be top contenders.

Work Ethic.

Credentials and reputation notwithstanding, the necessity for the mediator to have a strong work ethic was mentioned in every interview. The mediator must always be prepared. The mediator should also be outcome-driven, and persistent. And finally, the very best mediators always follow up if the case does not settle at mediation. Not all mediators recognize the importance of follow-up.

Operational Style

How the mediator actually works is also important. In terms of logistics, the mediator makes scheduling easy and efficient. The mediator must be well-versed in a number of areas of litigation, including recognizing the value of the case, and other intangibles that lead to a successful outcome. The mediator must be a quick study on the subject matter and thoroughly digest all of the preliminary documents and records. A strong qualification is the mediator’s ability to be patient and to listen well in order to quickly understand the positioning and objectives of all of the parties. The accomplished mediator must be able to effectively communicate with a wide variety of personalities. Respect is another key element.  A good mediator must always make the parties feel as though they’ve been treated in a professional manner and with respect.  Last, the mediator must be adept at managing time during mediation. Parties do not appreciate being ignored or time being wasted.

While we’ve covered the essential elements, there are other factors that characterize a successful mediator.  Stay tuned for Part Two, where we examine the intangible factors that make a good mediator, and that are not always easy to measure.

Written by Gregg Bertram

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