Conflict comes at a cost. Opening effective lines of communication among parties with competing interests is the first step toward conflict resolution. Mediation, whether voluntary or court ordered, is a tried-and-true process whereby parties confidentially seek a mutually beneficial solution. A skilled mediator plays a key role by assisting the parties with identification of stumbling blocks to settlement and with evaluation of potential paths toward resolution.
But are you and your clients getting the most out of the mediation process? It may be time to take a fresh look at whether your mediator demonstrates qualities and characteristics that will set your case up for a successful resolution. Here are seven questions to ask when evaluating whether your mediator selection is sound:
1. Is your mediator….AVAILABLE?
As the old saying goes, the most important ability is Availability. In some disputes, timing is everything. There may be a quickly approaching trial date or pretrial deadline. There may be continuing financial losses bleeding your client out. Or maybe the parties in dispute are just worn out and need to move on. If your favorite mediator is routinely booked solid for the next three to six months, maybe it is time to explore some other options.
2. Is your mediator….developing rapport with the participants?
An effective mediator must foster relationships with the parties and attorneys built upon trust and empathy. Is your mediator genuine or just going through the motions? Does your mediator really listen or just talk and give directives? Parties to a dispute may never get their day in court, so the mediation may be their only opportunity to be HEARD. It starts with the mediator.
3. Is your mediator…..experienced in trying and evaluating cases?
While there may be debate about whether subject matter expertise is crucial in mediation, it is indisputable that there is no substitute for experience when it comes to describing for the parties what the trial option will really look like. Mediators who have not felt the pressure of jurors’ eyes, the anxiety of waiting for a jury to return a verdict, and the restless nights of thinking and rethinking their case leading up to trial are missing a key tool in the toolbox. Every party to the mediation must have an appreciation of the costs and risks of trial, because this will be where the rubber hits the road if the case fails to settle. These costs include out of pocket expenses for trial preparation, discovery, experts, IT support, and demonstrative exhibits, not to mention the emotional costs of stress and uncertainty. Loss of control over the outcome is very often the key leverage point in getting a case settled. Does your mediator have the experience to effectively convey to your client what it means to go to trial? Does your mediator stay up to date on current trends in settlements and jury verdicts?
4. Is your mediator…..prepared?
If your mediator starts thinking about your case 15 minutes before the mediation begins, there will be a host of lost opportunities. The mediation day should be the culmination of efforts to resolve a dispute, not the starting line of the process of thinking and evaluating the case. At a minimum, pre-mediation phone calls with each attorney will go a long way toward recognizing triggers, identifying decisionmakers, and covering ground that will save time later, such as discussion of required provisions or language in a subsequent mediation settlement agreement and the status of lien issues or negotiations. In multidefendant cases, advance negotiations regarding potential liability splits will allow the mediation to hit the ground running in terms of negotiations with the plaintiff.
5. Is your mediator…..efficient?
Not every case requires an 8 hour mediation and gourmet lunch. But some do! The rapport building and fact gathering time is usually commensurate to the complexity and/or value of the case. There is a balance between establishing necessary relationships and keeping the participants on task. An effective mediator has good instincts and people skills necessary to run this fine line and add value to your negotiations.
6. Is your mediator…..persistent?
Finding consensus is not always easy and may not be very quick. In all too many cases the parties are sure there will never be agreement, only to have their case end in settlement. Optimism and continued engagement are necessary traits of a good mediator, not only during the mediation itself, but also in any post-mediation efforts to drive the case over the finish line or to address liens and remaining issues. When the parties want to give up, the mediator must keep digging to find common ground.
7. Is your mediator…..a creative problem solver?
A number messenger may be able to settle easy cases, but many mediations require something more. Out of the box thinking and a fresh perspective may be needed to push a difficult case past impasse. The parties and the attorneys are looking to the mediator to see the dispute with fresh eyes and to propose solutions that may not have been considered yet.
If you did not answer YES to all of these questions, then it is time to give some thought to exploring your mediator options. Mediation is a sound investment of time and attention in pursuit of resolving disputes before incurring more expense and the risk of trial Your selection of the right mediator for your case is the first step on that path.
