Selecting the right mediator is crucial for a successful mediation. A poor mediator, one who merely conveys offers and demands or declares an impasse after a few hours or several exchanges of numbers, can be detrimental and may harm future settlement discussions.
Always keep your mind on the end goal: maximizing the value of the case.
Factors to Consider in Selecting a Mediator
Credibility and Acceptance
The mediator must be acceptable and credible to both parties. Avoid mediators who are perceived to have strong pro-plaintiff or pro-defense leanings or those who have an established relationship with any party or counsel. An unbiased mediator ensures that both sides feel their perspectives are fairly considered.
Evaluating Bias and Experience
When selecting a mediator, it is important to carefully consider their professional background and any potential biases that might influence the mediation process. Be cautious about assuming that a mediator with a background as a plaintiff’s lawyer will automatically be favorable to plaintiffs. This assumption can be misleading and counterproductive.
Pro-Defense Leanings
In practice, mediators who have previously worked as plaintiff’s lawyers often gain work in mediation due to their perceived neutrality or even pro-defense leanings. Defense counsel may agree to use such mediators because they believe the mediator will understand their perspective and be fair to their client. This dynamic can sometimes result in mediators who, despite their plaintiff-side experience, may not necessarily advocate for plaintiff-friendly outcomes in mediation sessions.
Reputation and Relationships
A mediator’s reputation and relationships within the legal community also play a significant role. Mediators who have established relationships with defense attorneys or insurance companies may be seen as more favorable to the defense side. This can affect their approach to mediation, including how they interpret evidence, evaluate claims, and facilitate negotiations. Therefore, it is crucial to investigate the mediator’s history and any potential connections that might influence their impartiality.
Track Record in Mediation
Consider the mediator’s track record in handling cases similar to yours. Look at the outcomes of past mediations they have facilitated. Were their settlements generally perceived as fair by both parties? Did they demonstrate an ability to understand and balance the interests of both plaintiffs and defendants? This information can provide valuable insight into their potential performance in your case.
Recommendations and Reviews
Seek recommendations and reviews from colleagues, professional associations, and previous clients who have worked with the mediator. These firsthand accounts can offer a clearer picture of the mediator’s approach, strengths, and potential biases. Your state trial lawyers’ association can be a particularly useful resource for gathering this type of intelligence.
Continuous Evaluation
We have had mediators we loved who we ended up never using again. People change, and biases change. Always reevaluate whether the mediator you have is the best one for your case.
Two Kinds of Mediators
Understanding the client’s needs is paramount, especially from the plaintiff’s side. There are two prevalent mediation styles:
Evaluative Mediators
Evaluative mediators focus on forming an independent evaluation of the case’s value and steering the parties toward a resolution aligned with that value. This approach is often more numbers-driven and focused on legal factors. These are usually retired judges with the gravitas – or they think they have the gravitas – to push the parties toward their desired outcome. Is this a good thing? It depends on the case and the mediator. One thing is for sure: this style works best with a mediator is who not driven by their own ego.
Facilitative Mediators
Facilitative mediators focus more on the desires of the parties, aiming to reach a resolution that meets as many of each side’s goals as possible. This style tends to be more client-centered and can help put clients at ease by emphasizing problem-solving over legal leverage.
Matching Mediation Style to the Case
Personal injury litigants, often with limited experience in the legal system, may feel more comfortable with facilitative mediators. These mediators can better help clients understand that mediation is a two-way street and ensure that they perceive it as a process designed to assist them in resolving their issues, rather than as an exercise in pushing them toward a lawyer-driven resolution.
Court-Assigned Mediators
Many courts require mediation as part of the pre-trial discovery process, often resulting in randomly assigned mediators. Pay close attention to the mediator’s qualifications, as some jurisdictions only require the completion of a 40-hour mediation class to be listed as an approved mediator.
You are getting pot luck. Have we had great success with court-assigned mediators? Yes. Have we had more experiences with court-assigned mediators where the mediation was useless? Yes.
- Mediators and Arbitrators in Maryland (a list)
- Personal Injury Lawyer Help Center (tools for lawyers handling personal injury cases)