How to Choose a Mediator

Mediation may be defined as a process in which a disinterested third party "facilitates" the disputants in reaching a voluntary settlement of their differences through an agreement that defines their future behavior (settlement agreement).

Whether a mediation is agreed to by counsel or ordered by the court, the attorneys for each of the parties have a number of decisions they must make, not least of which is the selection of the mediator.

When choosing a mediator for a particular dispute, you should be sure that the person selected is properly trained and experienced in mediation; possesses the requisite personal traits, such as honesty, trustworthiness, patience,

The plaintiff and defendant in an action at law are like two men ducking their heads in a bucket, and daring each other to remain longest under water." ~Samuel Johnson

flexibility, and creativity; and is able to satisfy the parties' practical needs for availability and affordability.   In making your selection you must also consider what approach you want for your particular case and what approach the mediator can provide.

All mediators, regardless of approach or "style," must remain impartial.  The variable word in the global definition of mediation is "facilitate."  Different mediators adopt different approaches, methods, and styles to "facilitate" resolution.

When selecting a mediator, you need to decide whether you want a facilitative mediation, an evaluative mediation, or a combination of both.

A.  Evaluative Mediation
The evaluative mediator is hired by the parties to give his or her opinion as to settlement value or other solution.

The evaluative mediator assumes that the parties want and need the mediator to provide direction as to how and why the case should settle a certain way or for a certain amount.  In this narrowly evaluative model the mediator will go through pleadings, motions, and briefs to help the parties understand the strengths and weaknesses of their positions and the likely trial outcome.  The solutions are usually compromise-based and involve a prediction of court or agency decisions based on the mediator's assessment of value and risk.

B.  Facilitative Mediation
A facilitative mediator will normally have either a broad or narrow focus in defining the issues in the dispute.  He or she normally will not form or express an opinion as to outcome.  He or she will help parties become realistic by asking questions about the strengths and weaknesses of their cases, the best, worst, and most likely outcomes of litigation and the consequences--including costs--of a decision not to settle the case.

A broad facilitative mediator encourages the parties to design or define new problems that have solutions that better accommodate the parties' respective underlying needs, concerns, values, and interests.  The parties' legal arguments occupy a lesser position than in a narrow facilitative mediation, and sometimes have no importance at all.

C.  The Combined Model
In a combined model (facilitative-evaluative), the mediator normally first attempts to achieve a resolution facilitatively and, if that is unsuccessful, the mediator will offer opinions as to how the case should settle, using more legal analysis and experience with dollar verdicts.  Use of this model is quite effective because it first allows the parties to develop their own settlement ideas and proposals.  If a settlement results it may be more satisfactory and durable than a compromise suggested by the mediator or some other third party.  If the parties are unsuccessful, then they can look to the mediator's ideas and evaluations to help them measure what is fair and what to expect if they go to trial.

Transformative Mediation – In recent years a highly facilitative, nondirective model of mediation has emerged that is quite useful in disputes involving parties whose relationships need to be repaired or maintained such as workplace conflicts or divorce.  This conciliatory approach has limited value where disputes need an expedited resolution, where there was never a pre-existing relationship between the parties, or there won't be a continuing relationship.

(The preceeding is an excerpt from Judge Knepper's Advocacy in Mediation Course.)