Choosing the Right Mediator

Training, style, experience, cost, impartiality and availability are all critical to the selection of the right mediator. There are also certain personal characteristics that simply don’t array themselves well in an outline, but are equally as important. Good mediators are terrific listeners. They are honest, trustworthy and can instill confidence in clients and their lawyers. A good mediator is patient, flexible and creative. The good mediator can see possibilities for resolution and connections between a party’s interests and needs. The right mediator shows respect to clients and their lawyers. They can calm the angry client, offer confidence to the reluctant client and facilitate the give and take of communication vital to a successful mediation. So, how can you find this “perfect” mediator?

Find out about a mediator’s style. Some mediators are too facilitative – mediation-speak for unwilling or less willing to predict court outcomes or assess the validity of a particular factual or legal claim. Other mediators are too evaluative. This mediator may be too pushy to settle without really listening to the client and allowing the client to “tell the story.” The best mediator combines these two styles. Knows when to listen; knows when to persuade. This mediator knows how to get the job done.

Although there has historically been some dialogue among mediation academics about whether subject matter skill helps a mediator, it’s generally accepted today that picking a mediator who knows your area of law is a positive. If you want someone who can weigh in on your legal theories or factual claims, you want someone who knows family law like the back of their hand. But, don’t overlook the creative part. This skilled family law lawyer or judge must know how to think outside of the box, in order to achieve a durable settlement that is acceptable to both sides.

Knowing what the mediator has done in the past is important. If the mediator has mediated many cases, you will likely be getting someone who will be competent and comfortable with your case. If so, that mediator will be more able to help the litigant feel comfortable. Mediators who have trained or supervised other mediators may be more likely to have the depth of experience you want and need. Choosing a mediator who has been previously selected by a judge or other family lawyers will often lead you to the best mediator for your case.

You should always know how much the mediator costs. Most mediators charge by the hour. Inquire as to how long the mediator is available to handle your case and when the mediator is available. Ask what the mediator’s policy is for a cancelled or postponed mediation. Finally, as in any aspect of the management of a lawsuit, know the rules. Does the mediator require a pre-mediation memorandum?

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