The identity of the mediator probably makes a difference in some, but not all, cases. In one-third to one-half of all cases, if the mediator just permits the parties to negotiate and makes even a minimal effort to persuade the parties of the benefits of settlement, the parties will reach agreement on their own. In 5-10% of the cases, there truly is an insurmountable obstacle to settlement.

In selecting a mediator, these are some things worth keeping in mind:

general tips

• Subject Matter Expertise. A mediator who knows the area of legal practice from personal experience will command greater respect, and therefore trust, than one without such experience. When it comes time to provide feedback on a party’s prognostications, the mediator will know what is realistic and what is not. The mediator will also command more credibility in so doing.
• Mediation Skill. At least as important is the mediator’s skill in conducting the mediation. The merits of the dispute usually place outside limits on a settlement, and whether there is a point within those wide limits on which the parties can agree is usually a function of matters other than just the merits of the litigation. Expertise is important; mediation skill is essential.
• Settlement Rate. Most mediators keep this statistic, but it can be misleading. Be wary of anyone whose settlement rate is under 50%, but be equally wary of anyone whose settlement rate is over 90%. Only a handful of experienced mediators in the country can honestly offer that statistic. That percentage can reflect a large number of settlement conference-like mediations in which coercive power has played a significant part.
• Get References. Someone who has mediated a number of cases can provide you with names of people who have been through the process. Just knowing who they are can tell you a lot. Contacting them can tell you more, and help you know what to expect. Someone who has not mediated a lot of cases should have people who have been on the same or other side of cases, who can be a useful source of information.
• Seek Suggestions From Colleagues. Is there someone in your firm or who your respect who is active in mediation, or is a mediator? Get that person’s suggestions; they are more likely to know mediators and their reputations. Are there people you respect who have active litigation practices? They may have experience with mediators that can help you.
• Call Me. Even if you have decided not to use me, feel free to call and tell me about the case—I’ll recommend other potential mediators and give you suggestions. No guarantees, but no charge, either.

what qualities are important?

Mediators who hold themselves out as “facilitative” are focused on providing good communication between the parties and stay out of the way so you can negotiate for yourself. They are good at listening and addressing the clients’ feelings. Occasionally, they may engage in “reality testing,” but they are committed to allowing you to reach your own conclusion. The litigators’ rap on this type of mediator is that they are just “carrying water” and adding nothing to the process.

Mediators who hold themselves out as “evaluative” will tell you what they think about your case, and will tell the other side, too. They should not try to give you a “case value” because, among other things, the value of a case can only be defined by what a willing defendant will give a willing plaintiff. Nor should they focus exclusively on the case before exploring the potential for collaborative resolutions. Those who actually give the parties a “case value” shortcut the process and can actually sabotage the chance for resolution.

Most attorney-mediators, myself included, provide some combination of these two approaches. It was a central part of my mediation training from the then-head of the ABA Dispute Resolution Section’s Training Committee, Lee Jay Berman, and from the faculty of the top ADR training program in the country: Pepperdine’s Strauss Institute for Dispute Resolution.

These are some of the qualities that can make a difference to the outcome and about which you should inquire of the references, colleagues, a mediation service and the mediator:

• Persistence. The mediator who refuses to give up and keeps trying to bring the case to settlement will settle significantly more cases than one who gives up after a coupl eof hours without progress.
• Toolbox. There are a number of approaches that can bring a difficult case to settlement, and mediators sometimes refer to these gambits as “tools.” Some have to do with understanding litigation, some have to do with understanding people, some have to so with understanding negotiation and harmonizing different negotiation styles. The more different tools the mediator has, the more likely a difficult case will be resolved.
• Good Listener. Part of what mediation gives your client is a sympathetic ear. Creative settlement options are identified by listening. Obstacles are overcome by listening. Negotiation approaches are uncovered by listening. A poor listener is a poor mediator.
• Independent Minded. Listening to someone does not mean agreeing with what they say. The mediator should be able to understand different viewpoints without either internalizing them or judging them to steer the diverse viewpoints towards resolution. This is the hardest part of a mediator’s work.
• Patience. Different people negotiate in different ways, and some can be quite difficult. Some people are working out emotional issues in the negotiation process. The good mediator can handle whatever curve balls the parties throw and continue helping them to get the case resolved.
• Flexibility. The mediator’s job is to understand different viewpoints and communicate them back and forth. The mediator who is judgmental, dismissive of ideas or feelings, or who cannot deal with emotions or negotiation that gets “out of control” will miss opportunities to settle.
• Healthy Skepticism. Parties and their counsel are sometimes open and honest with the mediator, and they sometimes posture and bluff. Skepticism helps the mediator assess what is happening without being unduly influenced.
• Openness. Subject to the obligation to maintain confidentiality, the more the mediator can tell you about where the other side is coming from, the better the chance for the case to settle. The mediator’s job is a convert each side’s rhetoric into a message that the other side can hear.

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