Chapter 3 Finding the Right Mediator

• Jurisdiction: United States

Chapter 3 Finding the Right Mediator

Once you feel competent to represent a client at a mediation and the opportunity arises, it's time to select a mediator. The following discussion is not a marketing ploy. I quit mediating cases years ago. And don't let anyone tell you that any single mediator is right for all your mediations. It is just not so. There are far too many ranges of personalities, substantive areas of dispute, and nuances to restrict yourself to a one-size-fits-all mediator for all occasions. Additionally, as a practical matter, your "go to" mediator simply may not be acceptable to your opposition.

There are schools of thought that if you represent a plaintiff, you should choose a mediator who had a substantial percentage of plaintiffs' practice, and vice versa if you represent defendants. First off, you will find that the majority of available mediators who are not former judges primarily practiced civil defense work. Perhaps it's the familiarity of charging hourly, or the growing fatigue of dealing with insurers' increasingly bureaucratic rules, that draws defense lawyers to become mediators. Whatever the reason, they are in the majority of available mediators. One factor in their favor, however, is their litigation experience. In general, insurance civil defense counsel get to the courtroom significantly more often than plaintiff counsel. This is due to the generally larger volume of cases they are assigned to defend. Another benefit is their familiarity in working in and around insurers' red tape. I have encountered some excellent mediators who largely represented plaintiffs, but the risk here is that they are not as conversant and effective in dealing with the institution obstacles faced by insurer representatives and other corporate defendants. Additionally, it is a sad reality that rarely will an insurer agree to hire a plaintiffs' attorney as a mediator.

Several highly successful plaintiffs' lawyers I have spoken to follow the custom of simply letting the defense choose the mediator, within certain bounds. Their thinking is that this will enable the mediator to have instant credibility and persuasiveness in the defense room. This ceases to become an effective strategy if the chosen mediator has the nonethical reputation for favoring the defense room in hopes of garnering a predictable book of future assignments from that client. One way to avert this is to check out the legal publications where this mediator or his group place...