HOW TO: How To Choose A Good Mediator
Updated: Jan 19, 2022
Over the past year, Pacific ADR had the opportunity to interview a number of our colleagues, mostly attorneys, all of whom have regularly hired mediators. We thought we’d take the guesswork out of the mediator selection process and share some of our most significant findings, which were compiled from many hours of discussions.
During the course of our discussions, we were able to identify the mediator selection patterns that could be divided into two categories:
The first, the essential traits that characterize a successful mediator.
The second, the intangible factors which give a mediator the ability to engender and inspire trust within the parties.
There are many qualities that make a good mediator, however not all attorneys -even active mediators possess those essential qualities to be successful in their mediation endeavors. More importantly, and oftentimes contrary to popular belief, judges may not possess the essential qualities to conduct mediations that produce successful outcomes.
The Essential Elements.
Many attorneys have a recurring need to hire good mediators, so here are some common factors that should be considered in the mediator selection process. The mediator must have the full-range of skills needed. The mediator should be very experienced in many aspects of law such as contracts, professional negligence, construction, land use, civil rights, employment practices, and auto liability. However, some mediators limit their work to just a single area of civil litigation, which may hinder settlement negotiations.
Many of the attorneys we interviewed mentioned that a good mediator must have the right credentials: strong education, years of practice in law, and a solid reputation in the legal community. Word-of-mouth was cited as one of the most important factors in the selection process. The same short list of mediators, who are considered to be at the top, tend to work frequently, while some aspiring mediators are not contenders, unless there is a critical shortage of choices among top mediators.
Credentials and word-of-mouth notwithstanding, the necessity for the mediator to have a strong work ethic was mentioned in every interview. The mediator must always be prepared. The mediator should be smart, work very hard, and be outcome-driven, and persistent. The mediator’s three most important qualities are: trustworthy, hardworking, and credible. And finally, the mediator must follows-up in the event a mediation session does not result in a settlement.
How the mediator actually works is of utmost importance. In terms of logistics, the mediator, or mediation firm, makes scheduling easy and efficient. The mediator may be well-versed in a number of areas of litigation, enabling assessment of a range of the value of the case, and other intangibles that lead to a successful outcome. The mediator must be a quick study on the subject matter and thoroughly digest all of the preliminary documents and records. A strong qualification is the mediator’s ability to be patient and to listen well in order to quickly understand the positioning and objectives of all of the parties. Respect is another key element. A good mediator must always make the parties feel as though they’ve been treated in a professional manner and with respect.
While we’ve covered the essential elements, there are other factors that characterize a successful mediator.
In Part Two, where we examine the intangible factors that make a good mediator, ones which are not always easy to measure.
II. The Intangible Factors
The intangible factors are often specific to the mediator’s personality and might be related to their emotional IQ, intellect, keen intuition, instincts, and the natural ability to build trust.
The True Neutral.
The mediator must earn the trust of all of the parties. Not an easy feat. Earning trust among warring factions, is more than than getting along with the parties involved. The mediator must have the ability to be genuinely impartial, sincere, and show respect for all of the participating parties. As a true neutral, the mediator must possess excellent communication skills, must not take sides, must be able to read emotional cues, and must also know when to stand back.
Excellent Communication Skills.
The mediator should have a good vocabulary, i.e., the mediator can put together exactly the right sequence of words, and give it the right tone, at exactly the right time. This is an innate flair that has to much more to do than with the the mediator’s choice of words, but has to do with how well the message is delivered. The mediator’s posturing and movement, as well as the level of eye contact made is all part of excellent communication. The mediator’s style, tone and mode of communication does make a difference, especially in an anxiety-filled situation involving money and emotions. The mediator must find the right words to put all of the parties at ease.
The mediator doesn’t operate at one speed. One attorney we interviewed suggested that a good mediator is a chameleon of sorts, a bit different in every case to meet the unique needs of each party. No two cases are ever alike; the mediator must expend the right amount of flexibility, emotion and empathy needed to do the job. The mediator should have a calm and encouraging demeanor, a sense of humor, and may even be entertaining!
Knowing When To Stand Back.
The mediator should have a sense of discernment and know instinctively how to strike the right emotional chord. From this positioning, the mediator knows exactly the right moment when to stand back, listen to the parties, and let the parties people have a possibly cathartic experience. Parties should feel as though the mediator gets the job done, that he understands them and their position, and that they have been heard.
In summary, we’ve detected that many of our colleagues felt that good mediators share unique characteristics in common. These intangible qualities have more to do with personality than solely the mediator’s professional credentials. While good mediators are thought of as being smart, experienced and funny, above all else they have the skill, stamina, and focus to get the parties to resolution.