Not all neutrals are alike. There is a vast range of styles and personalities among mediators, and having a resume that looks good on paper does not mean that person will serve your needs well. Often, attorneys will send out an email to their firm asking about a particular mediator and will get a short response such as “good — helped us settle a case last year” or “did a decent job, but we didn’t settle” or “good. I’ve used him/her several times.” Don’t just rely on others who say they have used a mediator in the past and they settled the case — that does not give you any useful information. Some cases will settle regardless of what the mediator does and, conversely, some won’t settle no matter how brilliant or skillful the mediator is in the room. Don’t rely simply on a cursory stamp of approval from others. Consider the type of mediator you want and try to find someone who fits the bill.
There are lots of ways to approach mediation, and for the simplest cases, not much inquiry as to personality and style may be required. If liability is already determined, you might want someone with a truly neutral stance who is all business and will get straight to the heart of the negotiations on the dollar values. But these mediations are few and far between. It is far more likely that you will want to find someone who will help you achieve a settlement in the midst of complex facts and varied personalities.
The number one thing you should think about when choosing a mediator is style. Is the mediator someone who will actively engage with the parties about the strengths and weaknesses of the case? Someone who will discuss the law and how it applies to the facts of the case, educating the parties and party representatives about the relevant “sticky issues?” Or is the mediator someone who will be more passive and let the parties and lawyers do the vast majority of the work? Is the mediator tough in their approach or someone with a softer touch? Do you want someone who will be creative with solutions or someone who will drill down to the numbers from the beginning? You want someone who can read people and use the personalities in the room to help move the needle, someone who is willing to prepare by doing some legal research and doing a deep dive into the mediation briefs. Someone who understands how personalities, bias and personal experience play into the negotiations. Someone willing to adapt their style to the personalities in the room, and someone who can find creative options when there appears to be an impasse.
How do you find this unicorn of a mediator? Do your research!
- Talk to colleagues about their experiences with mediation, and not just what mediator helped get a good result, but how they helped get that result, and what techniques were used to help achieve a settlement. Ask about the personality of the mediator and whether he or she had to deal with any difficult personality conflicts.
- Talk to the mediator. Even a brief conversation about their style can give you a sense of their process and personality, which may tell you everything you need to know about how that mediator will interact with the parties. Make sure you keep this conversation neutral so no conflicts are created that would keep the mediator from being able to accept the job.
- Review the mediator’s CV, LinkedIn profile and website. Although this seems intuitive, not everyone bothers with researching their potential mediators, relying solely on peer references and nothing more. A review of the mediator’s experience, not just as a neutral but also as an attorney or other practitioner, can give you insight regarding that mediator’s ability to work through the tough issues that may arise during mediation.
There are an infinite number of different mediator styles and approaches, and finding the right mediator can make the difference between a productive mediation where, regardless of whether settlement is achieved, everyone feels they gained a better understanding of the issues, facts and/or damages that are truly at play in the dispute, and a mediation where everyone walks away feeling that they wasted a day (or more) of their busy lives. Take the time to find the perfect mediator for you and it will pay off in the long run.
Julie Rising Bryan is a mediator, investigator and litigator at the Boston law firm of Casner & Edwards LLP. Bryan focuses her practice on resolving business and employment disputes and conducting independent investigations. She has a wide variety of experience ranging from corporate governance issues, manufacturing/supply contracts, construction contracts, trade secret disputes, probate litigation and employment disputes. Bryan currently serves as a hearing officer for the Board of Bar Overseers, serves as a member of the MBA’s Dispute Resolution Section and is on the board of Lawyers for Civil Rights.