Most lawyers, and some clients, get the potential benefits of mediation. Cost/time saving, stress reduction, relationship preservation, confidentiality, blah blah blah. But once the decision has been made to go to mediation, how to find a mediator? And not just any mediator – the right one for that dispute?
What follows is a rough guide for picking a mediator.
(Quite) a few years ago, a colleague of mine was engaged in an IT case involving internet service providers. The second week into the trial, the judge asked “what is the internet?” Granted, it was early days, but the point is that most litigators would prefer to have their case heard by a judge who at least has some knowledge of the area of law before them.
In contrast, most mediators subscribe to the belief that it is the “process” they are really there to help facilitate. The substance is often seen as being something best left to the lawyers and/or parties.
Why the distinction? Of course, mediators are not judges. They cannot make decisions. They are not supposed to give legal advice. Many mediators are not even lawyers. So why does specialisation matter? Because in disputes involving discrete (and sometimes technical) areas of the law, it helps if the mediator has “some idea” what the parties/lawyers are talking about.
Areas that spring to mind include construction, tax, trusts, IP, IT, etc. Some idea saves potential misunderstandings, time, and allows mediators who really grasp the subject matter to be much more effective in helping the parties reach resolution. For example, mediators who attempt to reality check lawyers in a specialist area of law they know nothing about are unlikely to be productive.
Many mediators sell their services by saying how experienced they are, how many mediations they have done, and even their “success” rate (however that is defined).
The downside of all of that is the real likelihood that they are burnt out, and just a bit fed up with the tediousness of it all.
There is much to be said for enthusiasm. As a process, mediation requires energy, indefatigability, and creativity. These are hard to drum up if, as a mediator, you’re a bit over it all.
Yes I know, there has been a lot said on this general topic recently. So I’ll keep it brief. There are lots of white male commercial mediators. They cannot help it of course. There is a teensy-weensy list of female commercial mediators hiding on the Russell McVeagh website. And to get even more diverse than gender, what about cultural considerations? It is fundamental that disputes involving parties of non-European descent involve a mediator who gets the potential impact of cultural differences on the process.
It appears that many mediators undertake approximately one week of training in the field of mediation/negotiation/dispute resolution combined. There is only so much that can be learnt in a week, even if it was intense. Look for mediators who have a university qualification in dispute resolution, or equivalent.
This is kind of connected to the enthusiasm point above. Except this is broader. Mediation can be chaotic. It is a juggling act from start to finish. Forget rigidity. From flexibility evolves creativity. Forget mediators who use one model of mediation regardless of what the situation requires. Forget mediators who shy away from asking difficult questions. And last, but by no means least, forget egotistical mediators. They will suck up all the oxygen in the room.