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The starting point is picking the right mediator based on the nature of your dispute and the attributes of your client.

Let’s start with two concepts—process and subject matter expertise. Some people believe that they need a mediator who is steeped in process. They know all of the ins and outs of how to conduct an effective mediation, the psychology of dispute resolution, how to pose questions, reframe issues, and echo back to the parties, i.e., “What I hear you saying is…” They are more interested in whether the mediator has the “process” skill set and much less on whether the mediator has subject matter expertise.

At the other end of the spectrum, some people believe that subject matter expertise is the key for the mediator. They want someone who is experienced with employment law, or construction, understands domestic relations, or securities law. Process is not as important as making sure that they have a mediator who is going to understand the legal issues around which the dispute revolves.

Of course, the most effective mediators will have both process and subject matter expertise to bring to the table, but in varying degrees. Below, I will discuss some of the benefits and disadvantages of categories of possible mediators you may want to consider.

Judicial Expertise

Depending on what court you are in, you may have the opportunity for a sitting judge, or a federal magistrate, to conduct a mediation. There is a reasonable chance that a sitting judge, or a retired judge who is now doing ADR, will be reasonably knowledgeable about the law. They may also be in a position to predict how a jury might decide the case. If you are having issues with client control, the power of the robe might influence your client in a way you have been unable to. This can help insure that your client has a realistic view of the merits of the dispute and the likely outcome, which may motivate a settlement that the parties have been unable to achieve on their own.

On the other hand, a judge is accustomed to making decisions. He or she might be inclined to be very evaluative at the outset of the mediation and quickly start to argue with one side or the other about their unreasonable position. Seeing the dispute in terms of just black or white; one side wins, and the other loses, may derail the possibility of finding a more creative outcome that does not focus on the legal positions of the parties, but on their interests.

A sitting judge or magistrate may also have limited time to meet with the parties. If your client is going to need to vent and be heard at length, using a sitting judge may not work for you, even if there is no cost to the client.

Private Mediator

The advantage of using a private mediator is that you can select a mediator whose background, expertise and style match up to the particulars of your dispute. Private mediators will also usually have the time to devote to your matter if your client needs a lot of hand holding. Since private mediators depend on word of mouth advertising, and hope for more business from lawyers appearing in front of them, they are motivated to get the case to a resolution, as long as they can do so without too much pushing. As a result, they may work harder to get the parties to a resolution.

Private mediators also vary in style. There are basically three recognized mediation styles: 1. facilitative, 2. evaluative, and 3. transformative. Almost all mediators are to some extent both facilitative and evaluative; it becomes more a matter of degree. Those who fall on the “strong on process” side of the scale may be more facilitative and rarely drift into evaluative. Those with substantial subject matter expertise may move to evaluative more quickly. However, as a general rule, most mediators start off in the facilitative mode and move to the evaluative mode as the ebb and flow of the mediation may dictate. Timing is important because once a mediator takes a strong evaluative position, the mediator’s neutrality is compromised. If that happens too early in the process, it can be polarizing.

If you are selecting a mediator because of that person’s substantive expertise, the reason you are in front of that mediator usually is because at some point in the process you will want that mediator to express opinions of the merits of the case. A mediator with many years of experience in subject matter may increase the mediator’s credibility, which in turn increases the parties’ trust in the mediator and the integrity of the process. This can substitute for the authority that a judge or former judge may bring to the process.

Cost

If you are mediating in court, there is no cost for the mediator. If you retain a private mediator, you will be paying for the mediator’s time. Usually, the parties start off by splitting the mediator’s hourly fee, some of which the mediator may want paid up front. As part of the resolution of the dispute, the parties can agree to shift the cost of the mediator.

Hourly fees are going to vary depending on the experience of the mediator. However, do not make cost the controlling factor. The odds of settling with an experienced mediator are high. The fee paid to the mediator, even if the mediation takes the entire day, is much smaller than the expenses that will be incurred going to trial if no settlement is reached.

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