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Be Active in Jointly Choosing Your Mediator

December 31, 2010

Mediators are most effective when they are jointly and actively chosen by all of the participating parties.   They serve with confidence that they can assist the parties who choose them to find a mutually beneficial resolution.  

However, far too often a party will takes no active role in selecting the mediator for their dispute.   Or worse, one party or side will dominate the selection process.  The traditional reasoning and excuse for this one-sidedness is a  separate subject for another day.

However, one of the most common responses, that “any mediator will do”, needs to be carefully considered by those of you who are serious about your mediation outcomes .

It is true that your mediator makes no decision regarding any issue in dispute  in any mediation.  As a voluntary resolution process, all decisions, properly, are solely in the hands of the participants.

To suggest, however, that your mediator is therefore not a critical component of the entire mediation process and its opportunities for success,  is a huge mistake.

And, if you are one of those who presently subscribe to the “let the other side pick” , you are already missing your single best  opportunity for success at mediation.  You have undermined your mediator’s effectiveness with both sides before you even begin.

What total qualities will constitute the best mediator for the unique issues of your cause and for all of the mediating parties is another subject too large for this initial blog  point.

However, to at least get you started, let me suggest that you ask this critical initial question in selecting (or agreeing upon) any future mediator:  “Which party most needs assistance in preparation for and during the mediation?”

If the answer is you, I politely suggest you actively participate in selecting a mediator that you believe can and will assist you before and during the mediation process.   I say, politely, because at least you know you need help. 

But, if the answer is your opposition, it is imperative that you find that special mediator that can and will best assist your opponent!  Because, chances are, they don’t even know they need the help.

Think about it.  If all parties are not fully prepared for your mediation, your mediation will very likely be unsuccessful.  Uncertainty is the biggest enemy of voluntary resolution.  Successful mediation, and the required compromise and negotiation within mediation, requires preparation, skill and effort.  And, all parties suffer from the inadequacies of any one party if any of these requirements not met and appropriately used.

Who can best help smooth out these deficiencies in all of the parties, before and during mediation?  Your mediator.

One side will always come better prepared than the other.  One side will always have the better facts.  One side will always have the better law .  One side will always have a greater risk, real or perceived .  In short, the ground is never level in any dispute, and the same tilt carries into mediation. 

 But any experienced litigator will also know that, failing a mediation resolution, your jury may find the ground very much more level than you believed or even tilted in a totally different direction. 

Thus it is your mediator who must work to “artificially” level the ground for all of the parties to best allow the ultimate decisions made to fully include considerations of every reasonable possibility not perceived by any of the advocates.

You will thus need a mediator who will be readily accepted by all of the parties when raising questions or giving suggestions.  You will need one who will be prepared for the specific issues of your mediation.  You will need a mediator who can examine hostile positions without offending.  And you will need to work closely with that mediator prior to and throughout the mediation to help him/her with these tasks that benefit all of the parties.

Therefore, to find the right mediator for you (or your opposition) and the ultimate success of your mediation, you must begin by actively participating in your mediator’s joint selection to find the one best suited to all of the parties needs. 

To paraphrase another well-known saying, any good mediator is  not a “potted plant”.  But if you let the other side be the only one to select your mediator, you may find a plant would have been far less expensive.

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