United States: The Importance Of The Right Mediator

Last Updated: April 21 2017
Article by Leslie Berkoff

In order to set the stage for a successful mediation, it is crucial to select the right mediator.  Not every mediator is the right fit for every kind of mediation. There are a lot of variables that go into setting the tone for a successful mediation, but one of the most important variables is the mediator.

When selecting a mediator, one must consider a variety of factors: the nature of the dispute, the personalities at the table (both lawyers and clients), and the timetable within which the dispute  must be addressed. Further, and more importantly,  just because someone calls themselves a  mediator, or appears on a mediation panel, does not always mean that he/she is qualified to serve  in that capacity. Unfortunately, some panels do not require mediators to have undertaken classes  or instruction prior to being included on a list. Further, people can be too quick to try to select someone they know or have used before without truly considering the importance of making a  careful and thoughtful choice in respect of the particular mediation in question.

Why does this happen? For one thing, parties can be so focused on reaching the point of agreement  to go to mediation (or perhaps frustrated at being court-ordered to mediate in the first place)  that they view the mediation through the lens of litigation . They might see selecting the  mediator as a strategic step in the process and might believe that if they can get their friend or  former colleague to serve as mediator, this will ensure that they obtain the best result. It is  another way of "winning" against the other side; of course, if you have selected a good mediator,  this should not be true at all. Excellent mediators will guard their reputations and the integrity of the mediation process, and will both disclose and put aside personal relationships.

How do you select the right mediator? Well, just like a client hires a new lawyer, you should  evaluate the mediator's credentials. As previously stated, not all people holding themselves out as  professional mediators are truly qualified, and not all mediators, if qualified, are right for the  dispute at hand.

Mediator Qualifications

Let's start with the first issue: What does it mean to be a qualified mediator?  This typically  means that the mediator has received mediation training through a respected organization . This should usually be listed on the mediator's bio or CV. There are many good programs available to train mediators; some are run by local bar associations and usually are focused on  mediation  training   in  general.  As far as the author is aware, only ABI offers mediation training geared toward bankruptcy: the ABI/  . St. John's 40-Hour Bankruptcy Mediation Training Program run by Prof.  Elayne Greenberg.1 Many mediators will have taken a variety of courses and will often seek and receive continual training. There is much to learn about mediation, and ongoing education is important , as is practicing this skill set. Mediation skills need to be honed  and fine-tuned and  continuously utilized.

People are sometimes surprised to learn - or fail to appreciate - that this is a skill. Just the way being a trial lawyer or being able to take a good deposition is a skill, so too is serving as a media tor. People who do not have experience with serving as a mediator can sometimes   underestimate the importance of training. For example, during a recent Bar meeting discussing the pro bono mediation process, an attorney at a large firm was kind enough to offer to assign some of the firm's young associates to serve as mediators. While the gesture was greatly appreciated, as we cannot undervalue the donation of any attorney's time, unfortunately these young associates had  neither the training nor the experience in mediation to successfully serve in any mediation,  whether or not it was pro bono.

Advocates should be careful to stay away from the view that you just need a body to serve in the mediation role, especially if it is a pro bono mediation. Any reputable mediator will tell you  that mediation is an artform. In order to make mediation a successful process, mediators must  have the proper training, a well-developed skill set and a nuanced hand.

Mediator Experiences

Next, the parties might want to consider the mediator's experience. While it might be important to  examine how many mediations this person has been engaged in and handled, parties should also focus  on whether there is a unique issue at hand that might require some technical knowledge or back­  ground exposure. Why is this so important? In order for the mediator to successfully assist the parties in exploring their options , evaluating their  risks and considering all alternatives, the mediator has to be versed in the nuances of the issues  in dispute.

For example, if the dispute at issue is not simply a question of bankruptcy law but involves some  other area of the law, such as trademark, copyright or licensing , you may want to consider having  a mediator  who is knowledgeable in all relevant areas. When dealing with the valuation and/ or  liquidation of claims in the bankruptcy arena, a media­ tor having a good understanding of the  Bankruptcy Code is perhaps  the most important at times. Having once handled a mediation involving  claims arising out of a state court tort litigation, it is important to understand the complexities  of the bankruptcy process because, at the end of the day , any claim would be part of the unsecured  creditors'  pool, and any claim, no matter how large , would only end up with pennies on the  dollar. Thus, a mediator who only under­ stands tort law might not appreciate how the two areas of  law intersect once a claim is liquidated in bankruptcy. This knowledge and understanding of the  nature of the underlying damages and law was important to assist the parties in valuing  the  claim.

In addition, it is important not to minimize the media­ tor having familiarity with the chapters of the Bankruptcy Code that are at issue. There are tremendous differences between the various chapters . As demonstrated by the Detroit mediation cases, knowing the nuances of chapter 9 was critically important to resolving those disputes. Moreover, some chapters are utilized less frequently than others and are unique. For example, chapter 12, in certain areas of the nation, is not utilized frequently. In 25 years of bankruptcy practice, this author has only been involved in  two chapter 12 cases.

Mediator Fit

The next question that the parties should ask is whether the mediator (if otherwise qualified) is  the right fit for the dispute at hand. Once the parties get past the concerns of the mediator's  experience from the training and substantive expertise perspectives, the parties will want to  ensure that the mediator's style and personality are the right fit for the case.

Personality matters, as well as style. In order to determine what you need, first look at who will  most likely be at the table for the mediation. The parties should consider whether the mediator is  a good fit for not just the lawyers and clients on your side of the table, but also for the  opposing side.

At times, it is appropriate to utilize a current or former judge because some parties in some  situations require an individual who can command attention and respect to bring the parties to a  consensus. To be clear, that does not mean - nor does this author believe - that only judges can  truly successfully mediate a dispute (all due respect to our judiciary). Rather, at times,  parties will hold certain perceptions and be unwilling to explore alternative mediators for the process, but they will respond to a judge. There  'might be plenty of walls and hurdles to overcome during the mediation process, so there is no need  to add one more if this is the mindset of the parties.

Going beyond that concern, the parties should consider the mediator's style and temperament. Do the  parties need a mediator who is more apt to "take charge" of the process? Do the parties need a  mediator who is more relaxed and calm in his/her style? Even if the parties have not hired a former  judge, does the mediator need an air of authority, or will the parties simply respond well to  someone who comes across as confident and knowledgeable? Be sure to put down your litigator's hat  when considering these issues. A mediator who might get under your adversary's skin might seem  great for a moment, but it will not lead to a successful mediation pro­ cess since the purpose is  to facilitate resolution.  You are on a mediation track, so your goal and focus should be on hiring someone who will help you resolve your issues, not beat down your enemies.

Many mediators, this author included, will remind the parties during a pre-mediation call to come  prepared to speak and act in a settlement-focused fashion. Moreover, many mediators will suggest  that any pre-mediation submissions be focused on settlement. Remember again that the parties are  not presenting their case before a court, but rather trying to convince the other side why they  should settle the matter. Thus, a mediator who is stressing all of these concerns is important.

Parties should not squander the opportunity to inter­ view the mediator before hiring him/her. The parties should be interviewing the mediator to review a variety of issues , including  the   mediator's  experience,   training,  familiarity with the underlying issues and style. Mediators can and should be able to provide the parties with a curriculum vitae of prior mediations and  training experience. While mediators will obviously not reveal what occurred during any prior mediations, they can give you the names of cases and identify (without attribution) issues that  they have handled both in mediation and as litigators or advocates in the mediation process. With respect to the issue of having familiarity with the issues at hand, it is not necessarily relevant  whether that knowledge was obtained by serving as a mediator or handling those issues through  litigation; the question is just a knowledge base.

In addition, it is important to inquire as to whether the mediator has the time necessary to handle  the matter in question , especially depending on the complexity of the mediation at issue. The  parties should inquire as to whether the mediator has the time and flexibility to dedicate to the  mediation, if that is needed. At times, mediations are handled in compressed time frames, as they  are done on a parallel path with a pending trial or within deadlines pro­ scribed  by the court.

It is important to ensure that the mediator has the time to speak with the parties ahead of time,  read any pre-mediation statements and carve out the appropriate day(s) to engage in a process to seek a resolution. There  is nothing more destructive to the mediation process than when a mediator simply does not have  the time to devote to the parties. The author once served as an advocate in a mediation where both  sides spent hours preparing lengthy mediation statements, and it was clear from the opening  conference of the mediation that the mediator had not bothered to read any of them. It under­ mines  the integrity of a vital tool in the lawyer's tool kit and effectively destroys any chance of  resolution of the matter within the mediation process.

Mediator References

Do not be afraid to ask the mediator for references if the he/she is not familiar to you so that you can evaluate whether the mediator is the right choice.  Most mediators will be able to provide you with references. While the parties to a prior or pending  mediation cannot reveal what occurred during the mediation, they certainly can speak as to the  mediator's style, effectiveness, attention to the process and creativity.

References are also important to assess the mediator's temperament and style. Take the references  and ask their thoughts about the mediator's style and process. Ask whether they would use this mediator again. It is also important to ask whether their client responded well  to the mediator and the matter was resolved, or if not, why that might have occurred. With respect  to the last point, however, it is important to keep in mind that the inability to resolve a  particular matter might have nothing to do with the mediator. Sometimes, a controversy is simply  just not ripe for resolution and other issues might be at play. At times, matters do not get  resolved during the mediation, but, unless constrained by a court order or deadline, a good  mediator will often leave the door open for the parties to come back and try again.

Conclusion

As a mediator with 15 years of experience, this author can attest that a skilled mediator will often have a good chance of helping parties resolve a dispute.  However, it is essential that the parties select the right mediator for the situation -  one with  the relevant experience needed for the particular dispute and the right personality to work with  the parties involved in the dispute. If the parties have decided to try to resolve their matter  through mediation, be sure to spend the time picking the right mediator for the job so that it can  be an effective and rewarding  process for  both you and  your clients.

Footnote

1 This next training program will be held Dec. 3-7 at St. John's Manhattan campus and is only open  to 30 attendees. More information will be posted at abi.org/events.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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