In my thirty plus years of legal practice and almost 1700 mediation cases at the time of this writing, I have developed my own list of best practices in every stage of mediation. These come from what I observed as a mediator and as an advocate. At first, I thought it was because some of the lawyers were inexperienced in this process. Later I realized that many of these advocates simply didn’t realize the mistakes they were making, or felt that they had no time to correct them; or simply had no interest for whatever reason in correcting them. Those that fall in the latter category often have the mindset that mediation is just a simple and unimportant collateral process to the litigation system, and is of little or no consequence since the case can be tried in any event.
I am pleased to note a very positive development. Specifically, in recent years some law schools have programs focusing on alternative dispute resolution and now many law students are getting mediation and arbitration training and simulation practice as part of the curriculum and, or in their participation in the school’s ADR society. Many of today’s future and young lawyers are looking for and recognizing the value of resolving legal issues without litigation, whenever appropriate.
Here are some of the best practices I have observed when selecting the appropriate mediator for a case. There are seven; a few of which are generally acknowledged or accepted. They are:
- Subject Matter Knowledge – new developments
- Mediator Style – right fit
- Ability to connect with the parties
- Ability to keep control in the mediation while working with both or all counsel
- Neutrality and perception of neutrality
- Right mix of legal, mediation, and negotiation skills
- Cultural Considerations (knowledge or awareness and sensitivity where appropriate; a growing aspect as our population becomes increasingly diverse).
Subject Matter Knowledge: This is one most advocates are familiar with and follow. However, what has developed over the years is complexity in the legal matters where a combination of skill sets or knowledge is needed for the optimal chance of success. For example, an employment case may have serious and complex financial nuances that influence or impact on the circumstances, and such nuances could be lost upon a mediator possessing only general employment law knowledge. The employment relationship may have patent, trade secret or cultural aspects that must be properly addressed or considered in the negotiation and mediation process. Often, such cases look to mediation because it is felt by one or more parties that a judge might not be the best person to assist in resolving the dispute, even though it might be certain the dispute could most likely be resolved with finality. Neither (or more if multiple parties) might feel it preferable for a judicial decision.
Mediator Style – Once size does not fit all: Directive? Facilitative? Flexible? The mediator’s style is a significant factor in successful mediation. The “directive” style is most often found when the mediator is a retired judge or when the mediation is part of a judicial settlement program. However, because it is what most lawyers are use to, they tend to seek out lawyers and other mediators who use this style for all of their cases. Indeed, many advocates think this is the only form of mediation and are uncomfortable with anything else. The problem is that a directive style when one or both clients and at least one of the attorneys do not want this style, is not likely to result is successful mediation. As a former corporate general counsel, many of my corporate legal colleagues as well as me were in the habit of saying “If I wanted someone to tell me what to do or force me to do it, I would just wait for the judges settlement conference. I am certainly not going to pay for the privilege of being told what to do!” My legal colleagues and business clients were looking for someone (a neutral person) with knowledge and skill to help us negotiate a mutually acceptable resolution. On the other hand, if one or more of the clients need a “reality check”, most advocates would agree that directive is the way to go. This is one of the first things I determine when called into a case. What are the lawyers looking for and what are their clients expecting? What has been done so far and what is or is not working? Often, a combination of styles is appropriate and has proven successful.
Ability to Connect with the Parties: Advocates, often as the result of habit, use the same mediator with whom they have had success. This might be a good thing, depending on the case and clients. What they forget in doing so is that each client is different. For a successful mediation, the clients must feel that they are being heard in a safe and neutral forum, that their communication has value and is being considered by a neutral who respects their input. I have seen cases where advocates assume because the advocate feels these desired items are present; their client may not think or feel the same way. Sometimes this can be overcome in mediation, but why start the process with something that has to be overcome! At the very least, for efficiency as well as substantive reasons, careful thought should be given to the mediator selected. For example, in sexual harassment or gender discrimination cases, having a male and female co-mediate is often a successful technique that creates the environment for successful negotiations.
Ability to keep Control of the process: It is generally expected that a good mediator will own and keep control of the process, but that also means that the mediator should manage the process in accordance with expectations and parameters established prior to the mediation (in pre session conference) and at the outset. This involves flexibility, as appropriate, and boundaries should be clear to all from the beginning, so that time is not lost due to derailment and getting things back on tract.
Neutrality and Perception of Neutrality: This starts in the beginning – the selection process, and continues during the mediation sessions and follow-up. If any of the clients feel that the other side has an advantage, no matter how slight, that should not be overlooked. The simple way to discover this is to ask the client, once they are given the background of the mediator. (They often feel better about the selection of they are not just told but feel they have an option; even if they don’t exercise the option).
Right mix of Legal, Mediation, and Negotiation Skills: This goes along with the style of mediation. What is right for the case, the particular parties, and other counsel? Advocates sometimes overlook the latter point. The most successful advocates intuitively recognize that they need a mediator who possesses the ability to aid the advocate in negotiations where there is personality or style obstacles between or among the attorneys. Also, good mediators are experienced and, or, trained in interest-based negotiation.
Cultural Considerations: With an ever increasing diverse population, may advocates simply can’t keep up. Again, a good advocate recognizes where assistance is needed and seeks out that assistance. Whether it is the advocate’s client, and, or, the other parties that are culturally diverse, such differences can play a key part in the negotiations and are certainly considered and addressed in successful mediations and negotiations. Assuming they possess the other requisite knowledge and skills, a mediator possessing the particular cultural experience and knowledge can certainly be an advantage.