• mediation speeds up resolution
    saves money, and satisfies clients.

interview your mediator first!

This is an important decision. You don’t want your client turning to you as the mediation is breaking up without making progress and asking “Where did you find this idiot?” Not all mediators are the same and no mediator is right for every case. The mediator’s ability to understand your case and to connect with the people will be the difference between settling and not settling. Interviewing a mediator before making the decision should be part of your due diligence.

Unlike litigation or arbitration, ex parte discussions with a mediator are perfectly ethical— indeed, it is helpful to the process that will follow. Once you have a short list, call up the potential mediator!

For starters, you should ask how long the individual has been acting as a mediator and how many mediations of civil cases he or she has done as a private mediator. You want to know if the mediator has mediated cases with the same subject matter as your case or not. It’s also useful to know whether the mediator has experience representing parties in litigation dealing with the same subject matter, and if so, for which side.

What does the mediator regard as his or her goal in the mediation? If you believe that the case requires someone who will push both sides to do what makes sense, find out if the mediator is actually open to doing that. Some are not.

By all means, outline the case and the negotiating problems for the mediator. Does the mediator pick up quickly on the legal and factual issues in the case? Does the mediator ask insightful questions? Is the mediator really listening to what you say? Ask the mediator what might lie behind the obstacles to settlement that you are dealing with. Ask what techniques or approaches he or she might use to deal with the obstacles, or has used in the past. This will tell you something about whether the mediator has full toolbox or an empty one. If you ask the mediator what he thinks the range of settlement of the case might be, a good mediator will not be able to tell you—that will emerge from the negotiations that occur at the mediation.

The most important part of the discussion, though, lies in how you react to the mediator. Are you comfortable with the person? Does the potential mediator seem genuinely interested in your case and helping to get it settled? Did he or she inspire confidence? Did the mediator just agree with everything you said and tell you what he or she thought you wanted to hear? Or pontificate about what should happen that will resolve the case? Is this someone who knows what they are doing? Are you are satisfied that this is someone who is up to the task?

Given the importance of mediator selection, this is a reasonable step to take before settling on a mediator. You have nothing to lose, and you will walk in to the mediation with a higher comfort level.

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