Richard A. Kaplan
If you need a mediator, you probably know there are reputable organizations that promote panels of lawyers and retired judges who offer mediation services and there is literature available to help you narrow your search. In Utah, for example, you will find mediator biographies (self-interest alert, including mine) on utahadrservices.com or law firm websites, and of course you can work with the American Arbitration Association or other organizations depending on the subject matter. As for literature, there is a "checklist" available with thirteen separate criteria to consider; Negotiating and Settling Tort Cases, §6.11 (updated 2009), and there are many papers with the title "Selecting a Mediator" or words to that effect. See, e.g., Weinstein & Chao, Choosing a Mediator, 5 Bus. & Com. Litig. Fed. Courts § 51.35 (4th ed).
As I see it, the criteria and suggestions in the literature boil down to a few key questions: What do you need most from the mediator? Who has that particular capability? Will that person be acceptable to the parties and opposing counsel?
Deciding what you need from a mediator obviously requires both an accurate assessment of the case and a good understanding of the participants and the process. Determining which mediators provide what you need in those respects will not likely be possible based on a typical mediator biography alone. Gaining acceptance of the mediator you select may depend on how you play it.
SCENARIO ONE: Strong Case, Formidable Adversary, Zero Progress
Let's say you represent the plaintiff in what you see as a potential $5-6 million commercial lawsuit. Discovery is complete, you've developed good facts. On balance, the law favors your client. You consider yourself a good lawyer and an able negotiator. Still you've gotten nowhere in settlement discussions. Your adversary has a lot more experience than you do, and a rich resume of accomplishments at trial. The obstacle to serious negotiations and settlement may have something to do with your adversary's self-confidence, ego, or both. While you consider yourself "up and coming," opposing counsel is a long-time pillar of the bar and knows it. Most importantly, he is highly regarded as a trial lawyer per se, not for settling early, cheaply, or even at all.
You demanded $4.5 million and accompanied that demand with a written analysis of why you will win and why your damages greatly exceed your demand. He doesn't seem to understand your arguments, or, if he does, he clearly dismisses them. He's at zero. The only progress you've made is that he has agreed to voluntary mediation. How will you approach the problem of choosing a mediator?
It's not just the strengths and weaknesses of the case. It's the process and the psychodynamics you must contend with.
I've heard it said, not entirely in jest, that there are essentially three kinds of people: people who make things happen; people who watch things happen; and people who wonder what happened. At first blush, people who "make" things happen may sound somehow superior to people who "watch" things happen. Not so fast. That's not true at all, particularly as it relates to mediation. And, as for you and me, if truth be told, we must admit we've found ourselves wondering what happened from time to time.
As it relates to mediators, this simplistic classification of people is useful in beginning to consider what mediation style you want. All three describe not just people but skills, styles, and strategies. I want to explain the choices available to you without resorting to mediation jargon, and then to use the language of mediation to help you determine what type of mediation style you want for Scenario One. The discussion of types of mediation skills, styles, and strategies should have broad enough applicability to help you decide what you need in other scenarios as well. I'll present another, perhaps more typical, scenario toward the end.
Basic mediation styles and the strategies they support.
The best mediators, while open-minded, are highly skilled at seeing areas of agreement or mutual interest and even the broad outlines of a deal before it happens or while it develops. The focus here is on how they handle that knowledge.
Some of the most accomplished mediators view a deal as the overriding goal of mediation, occasionally requiring abandoning the principle of neutrality in favor of raw truth. Always having the end game in mind, they work hard to get the parties to that point by design. They may push one side or the other, or both, gently and forcefully at different times during the day. They try to “make” things happen.
Other highly skilled mediators take a much more hands-off, deliberate approach. They may nudge the parties from time to time. But they derive the most satisfaction from watching the parties strike a bargain themselves. Such mediators view neutrality during the process not just as appropriate but as fundamental. They’ve worked hard to develop that skill, to know when to talk, when not to, and when to stop. They know that approach engenders trust and thus has great value to parties willing to negotiate. They essentially “watch” things happen. This is the style you’re looking for most of the time.
I doubt that many mediators, if any, studiously practice “wondering what happened.” But it’s worth thinking about this idea of “wonder” at a deeper level. Some mediators are simply better than others at feeling and expressing empathy and appreciation. I appreciate, and you probably do too, people who are easily able to attribute ideas to others, rather than to themselves. That quality is especially important in mediators. Whether you want to take the notion of three kinds of people further and call the third category those who have the capacity to communicate “wonder” (like a parent encouraging a child) or something else, the ability to attribute authorship of ideas or proposals to others tends to make them feel like they’re contributing and taking “ownership.”
Some highly skilled mediators are flexible and able to use multiple strategies and skills successfully, along with dozens of tactics for working through impasse. They can plan and intuit when and how to employ this, that, or the other skill or tactic in the course of a single day.