Today, most disputes that are the subject of civil lawsuits are mediated prior to trial. As a result, increasingly businesspeople and other individuals who generally are not accustomed to dispute resolution processes are having to learn how to go about finding a mediator for their case. While there usually are many mediators available within a given community, good mediators don’t grow on trees and finding one is harder than one might think. The right mediator, or for that matter the wrong one, will have a significant influence on the outcome of the mediation.
Mediation is a confidential settlement negotiation between parties to a dispute that is assisted by a neutral third party. Parties engaged in mediation determine the result themselves – the mediator does not control the outcome of a mediation but instead brings his or her training and experience to bear in a neutral and unbiased manner to help the parties determine their own outcome. Mediators are not arbitrators and they do not decide the dispute for the parties. Mediators are best viewed as knowledgeable and neutral guides who take the parties on a journey of discovery meant to educate the parties concerning the dispute and their respective positions and encourage candid discussion and exploration of options for resolution. Mediators also serve as coaches who help the parties’ fashion their negotiating strategies and tactics while encouraging everyone to stay grounded in reality.
The mediator may be, but in most jurisdictions is not required to be, a lawyer. While lawyers who are generally familiar with the legal system and the processes for dispute resolution, often make good mediators, many non-lawyer mediators provide high-quality mediation services and should not be overlooked. Parties should ask themselves whether having a lawyer as mediator is desirable given the specific facts of the dispute to be mediated, or whether a non-lawyer mediator might be able to bring a different sort of expertise to the table that would be useful such as training in psychology, or significant real-world experience in a given type of negotiation or within a given industry.
The parties should consider whether a mediator with particular expertise in the subject matter of the dispute would be desirable. A mediator with subject matter expertise gained over a long career in a relevant industry may better understand the nuances and subtleties of the dispute and be able to guide the parties more efficiently toward effective resolution.
A mediator’s track record is also a relevant consideration. Mediators with a history of success in resolving thorny disputes generally will be more attractive than mediators without such a record. Parties should look for mediators who are known for their ability to “get a deal done”.
Training in mediation specifically, and in the field of alternative dispute resolution more generally is a relevant, although not determinative, consideration. Mediator candidates should meet applicable mediation-specific training requirements and should have a practice of pursuing regular continuing education and training in mediation and alternative dispute resolution to stay current on new developments.
Mediator compensation is always relevant, but usually is not, and should not be, the determining factor in mediator selection as often the mediator’s compensation will be minor in comparison to the amount at risk in the dispute as well as the fees charged by lawyers representing the parties. Mediator fees usually are based on hourly, half-day or daily rates that vary based on market considerations such as level of education, training, experience and workload. To avoid any appearance of bias attributable to payment or non-payment of fees by a party, mediators do not work on a contingent-fee basis and usually require payment of fees in full and in advance.
Unfortunately, there usually is no handy list of “good” mediators available for parties to consult, no single website that presents most or all of the relevant information about available mediators. Rather, identifying mediator candidates is generally a result of word-of-mouth referrals within a community. Lawyers who do trial work within the relevant industry are usually the best source for information about potential mediator candidates. Sometimes local judges and bar associations are also able to help. Parties should also invest some time in Internet searches designed to identify qualified mediator candidates and mediation resources. Mediators and mediation-oriented organizations often maintain informative and useful websites.
Occasionally, a professional organization can provide valuable information about individual mediators working within a community. In Texas, the Texas Mediator Credentialing Association (www.txmca.org) awards four levels of credential based on documented mediation experience and training (in ascending order, Candidate for Credentialed Mediator, Credentialed Mediator, Credentialed Advanced Mediator and Credentialed Distinguished Mediator) to mediators who join the association. At present, the TXMCA is the only such organization in Texas.
As with any other professional service, careful and methodical shopping usually will produce a solid list of qualified mediator candidates from which parties should be able to agree on a selection.
Author Jim Young is an attorney and partner in the firm of Culhane Meadows PLLC in Dallas, Texas and practices in the areas of corporate law and alternative dispute resolution (ADR). He has been in practice for over 30 years, roughly 18 of which were spent as a General Counsel and Senior Counsel with a number of insurance companies and a publishing company. Jim managed litigation during his years in the insurance industry, where he says his companies were routinely sued every morning before his second cup of coffee. Through that experience, Jim became well acquainted with mediation and arbitration as effective, cost efficient dispute resolution alternatives to litigation. More information about Jim is here.
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