Mediation Preparation: Selecting the Mediator
Which door to choose?
It only takes 40 hours of training to become a mediator, and if you’re a judge, you get a bye. Mediators have different skill sets and varying degrees of conflict resolution training. Think about your case, your client, opposing counsel and the other side’s client before you select a mediator.
Mediator Training. The most skilled mediators I know take many hours of training on a yearly basis, join professional conflict resolution societies, attend annual conferences and speak on mediation and negotiation topics. As part of your due diligence, find out something about the mediator’s background more than that a colleague “used” them before.
Mediator skill sets. Most mediators have good people skills. Curiously enough, not all mediators have good conflict resolution skills. This is where thinking about your client and the other side’s client is critical. They are the ultimate decision makers. Would they respond better to someone who takes the time to empathetically listen to them or to someone who tells them what to do? Do you have some client control issues? Do you perceive that opposing counsel does? A mediator well-trained in conflict resolution skills will have the relational expertise and emotional capacity to work directly with your client and the clients on either side and can be invaluable in closing the deal.
Lax and Sebenius, two Harvard Business School professors who authored 3D Negotiation, suggest mediators can assist negotiators by providing assistance in any or all of the following ways:
“. . . lowering the emotional temperature, fostering more effective
communications, helping uncover less obvious interests, offering
face-saving possibilities for movement, suggesting solutions the
parties may have overlooked, structuring the process more
efficiently, reducing the risk of sharing information, and proposing
fairness principles.”
Mediation subject matter expertise. Many lawyers believe that mediators need to be steeped in subject matter expertise. Most mediators think that the mediator’s skill set and process skills are their most important expertise. If you have a patent case, you are probably going to want to work with a mediator with patent law expertise. If you have a class action, you are probably going to want to work with a mediator who is conversant with class actions. Other than those two areas, if you chose a well-trained mediator, subject matter expertise will have less impact on settlement negotiations than you imagined.