Choosing a Mediator – Is There a Right or Wrong Way?
What are the factors to consider in choosing a mediator? There is not a one size fits all and there are different points of view as to what should carry weight in the selection of a mediator. Should the mediator have subject matter competence? Or is the reputation and experience of the mediator enough? What matters when the issues are complex and there are multiple parties?
Below is a list – not exhaustive by any means – of a few primary factors to think about and how to give them weight for your particular case:
Subject Matter Expertise
In cross-border mediation, familiarity with a particular country, language and culture;
Familiarity and experience in a particular industry;
Prior practice in area such as product liability or intellectual property.
General Expertise in Mediation
Acted as mediator on prior occasions;
Recommended as mediator;
Listed on “best mediator” list;
Former Judge.
Subject Matter Expertise - Some Further Thoughts
How important is subject matter expertise? After all, judges generally hear all types of cases civil and criminal even though they may not have practiced civil or criminal law. Does having been in-house counsel in a particular industry bring significant value to the role of a mediator? What if the proposed mediator was a government lawyer in a related area of the subject matter of the litigation. There will be cases in which knowledge of the subject matter – however that is defined – does make a difference. Maybe knowledge about a unique aspect of that industry or the jargon used will avoid misunderstandings or make it a lot easier for the parties to explain the controversy to the mediator. For example, an intellectual property dispute involving coding might be much easier for someone with experience on coding to understand.
At the same time, a judge’s substantive background is not determinative of what cases a judge will hear. It is the same for mediators. There is a saying that a conductor of an orchestra does not have to play all the instruments to conduct the orchestra. He or she is trained in music, and knows how to control an orchestra and bring about the right tones, timing and more. Mediation is much the same. A mediator’s training and experience allows for him/her to work with the parties towards resolution. Hence, absent a specific need for special expertise to understand the controversy or communicate with the parties, subject matter expertise may not be needed.
General Expertise - Some Further Thoughts
What about expertise in mediation or in serving as a mediator? How many cases has a mediator resolved? Is that even a relevant question to ask a proposed mediator? Is it important that a mediator has served in the mediator role on multiple occasions, and not just been in a variety of mediations as counsel to a party or as a party him or herself? How does one weigh a recommendation from counsel who used a particular mediator?
Perhaps the most important part of choosing your mediator is ultimately choosing someone you trust. That may come from a single interview where you simply find the mediator has a style that you feel good about and will mesh with the parties. It may come from referrals. You might arrive at that conclusion because your opposing counsel also found the mediator to be acceptable and finding mutually acceptable options has been a challenge. Or you might have selected the mediator based on special expertise or from a list of qualified mediators offer by a service. There is no standard right or wrong way to choose a mediator. Trust your own experience, do your homework, seek recommendations, and communicate with the potential mediators ahead of retaining one.