Selecting a Mediator: 2009 Update

April 20, 2009

In my mind there has always been an unwritten rule that mediators or arbitrators handle matters without “marketing their services.” If the mediator is knowledgeable and competent in the area of law, the case to be mediated will find its way to his/her office. This is accomplished by word of mouth, with perhaps an emphasis on age or experience. But, today, with all the printed, web and social media, one must take note that to find a good mediator, one should not just go to the media and get a name.

If you are truly looking for a peacemaker, perhaps a Web site bio, although a starting point, is not the only place for information. Now days it is more common, perhaps in larger law firms, to send out a list of potential names to the firm attorneys and see who has “used” a particular mediator before.

For example, a standard question asked is, “How do you think (name of mediator) will do in my construction case where we represent the prime contractor? The major issue is construction defect.” There is then a variety of reactions from “no idea who the proposed mediator is” to “this is the experience I have had (or I have heard about).” This information is then passed on to the client, which eventually is translated in a “negotiated selection process.” On occasion the decision boils down to which mediator is most neutral or least objectionable.

True, the case is often times settled with both sides feeling they have been shortchanged. This is one of the normal results if a case is settled – everyone gives in to some extent. But if the mediator had an active style evaluating or pushing each side toward a resolution, there may be a tendency to give that mediator high marks. If more passive or conciliatory, allowing the attorneys “to do the deal,” then maybe the mediator’s marks are not that high.

Regardless of what a mediator’s Web site says or the comments from other attorneys, pick a mediator based upon that mediator’s “brand.” Some attorneys also call it “style.”

The brand should also be:

  • Trustworthiness
  • Knowledge in the area being mediated, both as to facts and law
  • Commitment to handling the mediation in a professional way
  • If the mediator’s personality fits your mediation
  • If the mediator will be one that puts forth the extra effort

Finally, what do you want in a mediator: one who evaluates the case or tries to conciliate the case? True, a mediator sometimes is required to do both but generally has a mediation style or brand.

It would be extremely difficult to put one’s mediation style or brand on a Web site; perhaps easier to have it described by word of mouth. My suggestion is that you check the Web site and check with your fellow attorneys, but also take the points above and compare them to the various mediator choices you have. This may help in your selection process.