The right fit

A road map for plaintiffs’ attorneys to selecting the best mediator for a particular case

2020 August

With the high costs and risks of litigation, mediation can be a good opportunity to resolve legal disputes at various stages of a case. While preparation, process, and strategy are critical for mediations, another important factor is which mediator you choose for your case. Carefully choosing a mediator who is a good fit can increase your chances of a successful mediation.

The road map – case considerations

The first thing to consider when choosing your mediator is your case. Honestly and fully assess your case and your client.

How complicated are the issues? Does the complexity of the case warrant a mediator who has a specialization or extensive experience in a specific area of law? If the case is very complex or nuanced, it would certainly help to have a mediator who, because of their expertise, can cut to the gravamen of the case easily, instead of a mediator you would have to educate.

For niche practice areas, it would be helpful to find a mediator knowledgeable in those areas of law. For example, in a case involving international aviation law or admiralty law, it would likely not be a good use of your time to have to explain to your mediator the specifics of the Montreal Convention or maritime preemption. The complexity of the case may also bear on whether you will need the mediator for a half-day session or for more than one day.

What is a reasonable valuation of your case? Valuation of the case will also determine whether the mediator’s rates will be a factor. A high-value case might warrant the use of a well-known, highly experienced mediator whose rates can be as high as five figures per day. If the value of your case is relatively small, you may want a mediator with lower rates.

How far is your opponent from your valuation, and what are your client’s expectations regarding the settlement of your case? Obviously, the further apart those numbers are, the more work your mediator will have to put in. It may factor into how aggressive you want your mediator to be and on whom the mediator will need to focus.

If your client is expecting to settle for an amount that far exceeds your valuation of the case, not only will you have to do some work to manage those expectations, but you may also want a mediator who will assist you in managing those expectations. In that case, it’s important to find a mediator who can effectively communicate with your client. This may require a frank personality assessment – whether your client would respond better to someone who presents as an authority figure, or whether your client would be more amenable to recommendations from someone with a softer touch.

Another consideration, especially if you have a case that involves a sensitive issue, is whether your client will be comfortable with your mediator. If your client has been a survivor of sexual assault or abuse, they may be more comfortable communicating with a mediator who can be more sensitive to such trauma. Or if your client is non-English speaking, a mediator who can communicate in your client’s native language may also be more effective in helping you manage your client’s expectations and comfort level.

On the other hand, if your client is assessing the case at a value lower than your own (rare), and you have some concerns that the client may just “jump” at the first offer by the defendant, then you want to look for a mediator who tends to let the attorney do all of the communications with their client. The mediator is, of course, motivated to settle the case and you don’t want the mediator to sell the case for a lower value to your client. A mediator that understands these boundaries will often speak to the attorney, outside of the presence of the client and allow the attorney to communicate the offer directly with their client. This allows you to fully control how information is conveyed and put any settlement offers in the correct context for your client.

You may want to consider the venue of your case and any potential bias based on geography. If your case is in a venue that is outside where you normally practice – for example, in another state – and there are concerns about you being an outsider, consider a mediator who has some ties to the venue or consider finding a mediator from a “neutral” location.

Researching the potential mediator

After identifying what you’re looking for in possible mediators for your case, you can use those considerations to guide your research. You should do as much research as possible when selecting your mediator. Often, the best source of research is speaking with other attorneys who have used the mediator you’re considering. Hearing about someone’s firsthand experience with a mediator can be very valuable, and give you critical insight into that mediator’s process, communication style, experience, strengths, weaknesses, and possible biases. Such feedback can give you a better sense of that mediator’s reputation in the field. Some practice organizations or bar associations may also have online listservs for their members with useful information and feedback on mediators.

Another source of research is the internet. Mediators often have their own webpages with their curriculum vitae, experience areas, price rates, and customer testimonials, which can provide basic information about the mediator. Legal magazines (such as this one) may have articles by or interviews with the mediator that highlight their experience and approaches to mediation. Mediators may have social media accounts and viewing the publicly accessible portions of such accounts may tell you more about them as a person. If the mediator was previously a practicing attorney or judge, you may be able to use the internet or legal databases to find cases they were involved with. You can also speak with other attorneys to get information on how that mediator was as a judge or attorney. This can give you a sense not only of their familiarity with certain issues, but also how they might approach those issues in mediation. For example, if while serving as a judge, they often ruled in favor of very broad inquiries into a plaintiff’s alternate emotional distress sources, that may indicate that they do not value emotional distress damages very highly.

If you are considering a mediator that you have not worked with before, you should talk with them to get a sense of whether they have the experience you’re looking for, how they communicate, and whether you and your client would be able to connect and work with them on the case. Of course, you should avoid revealing too much information about your case or doing anything that could be deemed as improperly influencing the mediator.

Finally, another thing to keep in mind is that just because you successfully worked with a mediator before in a prior case does not necessarily mean that they will be a good fit or achieve a similar result in a different case. Each case may resonate differently with a mediator, and mediators may change their approaches or perspectives over time.

Additional considerations during the pandemic

The current coronavirus pandemic has created new challenges and considerations for mediations. In addition to the factors mentioned above, you should now also discuss with your potential mediators about whether they are conducting virtual mediations, the specific technology they use, and their approach to security and confidentiality. You can try to get a sense of how comfortable and familiar they are with virtual mediations and how they would conduct such mediations. You should also check with your client about whether they will have the necessary technology or equipment to participate in a virtual mediation.

Strategies for getting your desired mediator

The minute that potential mediation is brought up in any of your cases, you want to try to be the first to suggest at least three mediators to the other side. Ideally from the get-go, you have narrowed the list down to mediators that are acceptable to you and if the other parties choose from any of those mediators, you will be able to mediate the case with a mediator that you wanted or, at the very least, you are willing to work with. Of course, this only works to the extent that you have considered whether the mediators would be acceptable to the other side.

As with all aspects of properly preparing your case, being thoughtful and intentional about finding a mediator can go a long way to achieving your desired result.