What Do You Look for When Choosing a Mediator?

Coffee Talk is a regular feature of the Contra Costa Lawyer magazine. We ask a short question related to an upcoming theme and responses are then published in the Contra Costa Lawyer magazine.

What do you look for when choosing a mediator?

I look for someone who has experience in personal injury work (Plaintiff or Defense) and who allows the parties to have a joint session at the beginning of the mediation.

-Phil Andersen (CCCBA Board President)

I tend to prefer retired judges. While not necessarily true, they tend to carry more weight with clients, particularly when they tell them how things work in court and what they might have done with the case when they were on the bench.

-David S. Pearson, Law Offices of David S. Pearson

Someone who can really lean on the parties and push them to a settlement.  I have had mediators who have little backbone to push things along and those mediations take twice as long as they should.

– David A. Arietta, Law Offices of David A. Arietta

  1. Has the person been trained in the mediation process? Many people think they can mediate, but if that person has only been a decision-maker, it can be challenging for them to stop telling people what to do. Mediation is not the same as arbitration or a settlement conference, and the skills to manage the process are very different.
  2. Closely related is the following: Does the mediator understand their role as an impartial, non-decision-maker? Recently, mediators have started offering, what euphemistically is referred to as a “mediator’s proposal.” This often happens when the “mediator” listens for some period of time, and then says, “Do you want to hear my settlement proposal?” Their opinion inevitably can have significant influence on the outcome. It may also demonstrate a bias, which could end a mediation prematurely. Recent research is showing that those who accept a “mediator’s proposal” are more likely to suffer from “buyer’s remorse.”
  3. Have they mediated similar cases? One should look for a mediator who has subject matter understanding and has mediated similar cases. One is better served with a “specialist” rather than a “generalist.”
  4. Do they understand the local rules and statutes that relate to meditation? This is becoming very important in California, as many mediators explain mediation as a confidential process, but fail to disclose that any attorney and mediator malpractice are also shielded during that process. Unless parties understand the full implications of confidentiality, they may be in for a very big surprise. This issue has been a hot topic for several years at the California Legislative Review Committee.
  5. Does the mediator subscribe to a code of ethics? With no regulation of mediation in California, it would be nice to know that a mediator at least subscribes to a professional code of conduct and ethics.

These are just a few of my thoughts. As longtime ADR faculty at the National Judicial College, Steve Gizzi and I are in tune with what makes a good mediator.

Nancy Neal Yeend, ADR Projects Manager

Gizzi, Reep Foley

Is this person knowledgeable in the subject matter? Do they have litigation experience on which to rely on when guiding parties towards settlement? Do we think the potential mediator’s personality will mesh well with the parties?

For cases where there is a significant power imbalance between the parties, does the mediator have a strong backbone?

Thank you for the regular, thought-provoking questions.

-Gary Vadim Dubrovsky, Dubrovsky Law

Thank you to all who answered this month’s Coffee Talk question. Please watch your email for future Coffee Talk topics.