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