Selecting the Right Mediator for Your Dispute

By Steven H. Kruis, Esq.
San Diego Attorney Journal, February 2013

What should you consider when selecting a mediator? This article addresses the salient factors that will enhance the likelihood of a successful mediation.

Timing.

When is a dispute ripe for a productive mediation? Generally speaking, it is when the parties possess enough information to intelligently discuss liability, causation, and damages. Once the dispute evolves to that point, and the parties share a genuine interest in reaching resolution, mediation is timely.

Selecting the mediator.

One size does not fit all. The personality types and needs of the parties, the level of client control, your relationship with opposing counsel, and the nature of the dispute all factor in to determining the best mediator for each particular dispute.

Regarding mediation styles, on one side of the spectrum is the facilitative model and purist mediator who works toward finding creative solutions that meet the interests and needs of the parties, ascribing relatively little importance to their legal rights. The best cases for the facilitative model are those more about emotions than money, especially when the parties will continue their personal or business relationship. The mediator is a facilitator, not evaluator.

On the other side of the spectrum is the evaluative model where the mediator evaluates the case and tells the parties what it is worth. The case is solely about money, and the emotional aspects of the case are not highly relevant.

The hybrid model is in the middle of the spectrum where the mediator is a skilled facilitator who shares neutral impressions with the parties to help them better evaluate the matter. Instead of assigning a value to the case and prevailing upon the parties to agree with that value, the hybrid-model mediator endeavors to get the parties to agree with each other as to what the case is worth. Emotions — hurt feelings, anger, animosity — are important in that they must be addressed before getting down to the business of negotiating a settlement, but these cases are ultimately about money.

The subject matter of the dispute and the personalities of the mediation participants will dictate the best type of mediator. A strong-willed and successful business client may not react well to an aggressive evaluative mediator, but require a much more nuanced style, where an unsophisticated but hard-to-control client with unrealistic expectations may benefit from that approach.

Interviewing the mediator.

Once you have determined the type of mediator most appropriate for your matter, is it appropriate to call a prospective mediator and discuss the case and mediator’s style? Many practitioners are reluctant to make such a call as an ex parte communication. However, remember that mediation is nothing more than a series of ex parte communications. Since the mediator is not making a decision, there is no ethical or legal prohibition to a pre-mediation communication.

In fact, the law encourages such communications by cloaking them in mediation confidentiality. California Evidence Code § 1115 (c) defines a "mediation consultation" to include a call to a mediator "for the purpose of initiating, considering ... or retaining a mediator." Under § 1119 (a), communication during a mediation consultation is subject to all of the protections of mediation confidentiality as if made during the mediation itself, even if the prospective mediator is not ultimately retained to mediate the dispute.

In interviewing the prospective mediator, consider inquiring about mediation style, training, experience, strengths, and weaknesses. Other appropriate questions include: have you previously worked with my opposing counsel? What is your view of your role in mediation? What lessons have your mediation experience taught you? Do your unsuccessful mediations have common characteristics that the parties could have avoided? What effort will you make to follow up if we do not settle the case? What advice do you have for me in preparing for mediation?

Getting opposing counsel to embrace your suggested mediator.

Once you have decided on the mediator with whom you are comfortable for your case and want to propose to opposing counsel, how can you enhance the likelihood that counsel will agree to your suggestion? Ideally, the mediator will have previously mediated with you and opposing counsel. If you have used the mediator before, but opposing counsel has not, disclose that fact up front. Explain why you believe the mediator would be a good fit for the case, and invite counsel to call the prospective mediator.

Also, provide opposing counsel in the current case with the name and contact information of the attorney or attorneys who opposed you in the prior case mediated by the prospective mediator. Good mediators generally have positive experiences with such opposing counsel, who will most likely provide favorable input. There is no better recommendation than that coming from your adversary in a prior case that was successfully mediated by the mediator you are proposing!

Tell the mediator what you need.

If possible, speak with the mediator before the mediation. If a pre-mediation call cannot occur, let the mediator know at the outset of the mediation that you would like to speak in private. Either in the pre-mediation call or private meeting at the outset of the mediation, let the mediator know how he or she can help you either with your client or opposing counsel. Be prepared to discuss any client control issues, client constituents that may have influence on the client, the relationship, if any, between the parties, and how you interact with opposing counsel. Mention your thoughts about a joint session, and any other salient points that will help the mediator understand the dynamics underlying the case, and any impediments to settlement.

By following these suggestions, you can find the right mediator for your case and enhance the likelihood of a successful mediation.

Steven H. Kruis, Esq. has mediated and litigated thousands of cases for the past 32 years. A former managing partner of a major San Diego law firm, he began mediating in 1993, and handles real property, business, probate, employment, and injury matters. He is a full-time mediator with Kruis Mediation (www.kruismediation.com).

Reprinted from San Diego Attorney Journal, February 2013.