Author: Nigel Wright, International Mediator & Arbitrator
When I was in private practice mediating cases, the answer to this question was straightforward: A good mediator helped me achieve what I wanted to accomplish in the mediation and was someone I enjoyed working with. When I was in-house, I changed this perspective and considered I was too enlightened to be concerned about the personality and that a good mediator helped me resolve the case, and that was all that was important.
Now that I am a mediator, I thought I would try a different approach to establish what constitutes a good mediator. I asked several attorneys what they disliked about mediators and then identified the opposite of that characteristic. Most of the responses centered around the mediator’s “failure to do anything or add value.” Further questioning on this answer revealed that the attorneys considered that the mediator did nothing to promote resolution and sought a financial solution involving the attorney’s client being asked to pay more, or take less than they considered appropriate for the case.
Additional factors and criticisms that cropped up involved claims that the mediator was not neutral and had shared confidential information without permission or had no imagination. However, the number one complaint about commercial litigators was that the mediator shuttled offers back and forth.
Having sat in the attorney and client chair for many mediations, I can certainly relate to all of the criticisms above, however, I wanted to understand why attorneys end up with mediators that did not meet their requirements and whether anything can be done about it.
A few mediators have somewhat challenging personalities and, for my part, if I ended up in front of such a mediator, it was usually because my attorney or the other side’s attorney had recommended or “demanded” that mediator. Reasons for the selection ranged from the only mediator available in the venue on the date the parties could make, the other side will only mediate with this mediator, or to the argument that this mediator gets results.
For my part, in the client’s chair, insistence on a particular mediator who did not have experience with the subject matter was always a red flag. It rarely prevented the mediation going forward but always had a limiting factor on the amount of information that we were prepared to share, as we had no expectation of neutrality or confidentiality.
So, is personality important, and can you have an effective mediator but not particularly enjoyable to work with? My experience suggests that personality is important but is not always the determining factor, after all, mediation is a serious matter where the parties’ legal right is likely altered in the event a resolution is achieved and likability, while important especially in long mediations, is unlikely to change a client’s perspective of the outcome of a mediation.
Neutrality, on the other hand, is something that should be non-negotiable. Whatever the mediator’s background, you should have confidence that the mediator will be impartial. Not only is this the bedrock of trust, which is critical in mediations, but it is also an ethical requirement of all Georgia Mediators. Good mediators understand this, and parties should be wary of any party insisting on particular mediators without a reasoned explanation. Many defense lawyers tell me that they always agree to the plaintiff’s recommendation, as in that way, they hope the plaintiff will listen to that mediator. This, of course, assumes the mediator is entirely neutral.
In trying to come up with the opposite of “shuffling paper backward and forward” and was “not imaginative”, it is important to understand what is meant by these criticisms. Often, what is said by the attorney is that the mediator did not engage with the parties and did not understand the case. This leads to one of the most important traits of good mediators: preparation.
It has struck me that, absent sheer laziness, the primary reason that a mediator shuffles offers back and forth is that they do not have a proper understanding of the applicable law or the facts of the case.
The same failing is also responsible for any lack of imagination on the part of the mediator. Attorneys are not looking for a solution that no one has ever thought of (although that would be nice) but rather the presentation of alternative resolutions considering the mediator’s privileged position of having heard and understood all parties’ positions and interests.
To find a mediator with these positive traits, I would often seek a mediator with a background or experience of a particular area of law; however, what I was looking for was a mediator engaged in the subject matter and with whom I could have substantive discussions. If my mediator did not understand the applicable law or had failed to grasp the facts presented, then how could they evaluate the strength or otherwise of my party’s position?
As a mediator, I believe that preparation is more critical than prior legal experience.
Has your mediator contacted you before your mediation to ask questions?
Have they asked for case law?
Has your mediator pressed both parties to submit mediation briefs and exhibits before the mediation?
Suppose the answer to all of these questions is yes. In that case, you have a mediator who is showing all of the favorable signs that they will be ready to engage with you and the other parties in a meaningful way at the mediation, in short, they are showing all the characteristics of a good mediator.