Skip to content

Mediation Strategies: Does (the experience of) Your Mediator Matter?

May 2, 2011

Among all of the other demands upon your limited time, how much effort should you spend on mediator selection?  Does your mediator really matter?  Does their background, knowledge and experience  matter?  Can he/she really make a difference in your mediation?

It clearly is self-serving , but yes, I strongly believe your choice of your mediator is critical to the success of your mediation.  Perhaps not always, but often enough that you ignore your mediator selection at your peril.

I previously wrote about  my feelings about the importance of a mediator and being active in selection of your mediator some time ago.  See, Be Active In Jointly Choosing Your Mediator, December 31, 2010 in this same educational blog.   The thrust, however, of that article was to emphasize how much the right mediator can aid all parties to any mediation by primarily assisting the weakest participants to maximize the opportunities of success for all of the participants.

C. K. Willoughby, a Florida Supreme Court Certified Mediator from Port St. Lucie, Florida, also seems to agree.  He suggests, recently, that although “a good mediator can mediate any type of case without possessing any specific legal experience or knowledge”, in certain specialized actions, that “the mediator who has specialized experience and knowledge in that respective field will more effectively and competently help the parties and attorneys into a successful settlement process”.  See, “The Mediator Matters“, The Lawyer’s Log Book, Vol.1, No. 1, April-May 2011.

Every mediator, like every lawyer, can only gain experience and knowledge over time and practice.  And, Mr. Willoughby doesn’t seem to differentiate between experience and knowledge gained in the practice of the field or in  mediation of the practice of a particular field.  I suspect either would be acceptable to him.  But, he asserts the extra value of a mediator with experience.

New mediators cringe at this “experience and credentials” selection criteria as each tries to establish and expand their client base in a very competitive field.  And, certainly, any practice requires practice.  And every “great” mediator began with his/her first mediation opportunity.

But, Mr. Willoughby makes a  valid point.  “For the mediation process to work effectively, the mediator must establish in the parties (and lawyers) a sense of trust and confidence in the mediator”.  “If you went to a general medical doctor with a rare medical disorder and that doctor asked you what that disorder was, you would immediately lose confidence in that doctor and go to a specialist”.

Interestingly, however, Mr. Willoughby suggests that, for example, in a personal injury matter, that  it doesn’t make any difference whether your mediator had experience representing the plaintiff or the defendant;  just that he/she has/had experience with those type cases.

Again, I agree that your “side” experience is of little consequence.  While practicing, I often reminded my clients that the opposing attorney was not the enemy.  He/she only represented, this time, the opposition and was merely doing their job.  And, on any given day, I  reminded them that I could have represented the opposition and the opposing attorney could have represented my client.  The point:   good, qualified professionals are interchangeable.  That is exactly why they are professionals.

Unfortunately, too often some participants seek only a mediator “that looks like us”.  While it may be valuable to “understand” a participant, isn’t it just as important to “understand” the opposition?  In reality what all of the participants should be asking is how effective is a mediator seen by their opposition .   How is his/her experience and credentials respected?  How effective can any mediator be who is not trusted by all of the participants?

There are some other really good thoughts in this short article.  Valid points include experience and knowledge as critical to efficiently grasping and ranking issues, asking appropriate questions, speaking in understandable terms, savings in time and the standing and credibility to challenge any side when necessary.

I would add one note of caution to these important thoughts.  Remember, we started this discussion observing that a good mediator can mediate any type case.   And, I also agree with that general premise.  Therefore, isn’t one of the problems determining what is really a good mediator?

What constitutes a good mediator is not solely the outcome of his/her mediations.  Although mediators, like parents,  often get far too much credit and far too much blame.   And, often real success in mediation is not easily quantifiable.  But, ultimately, each attorney or party will come away with a “feeling” that mediator on that occasion really made a difference to that attorney or party.  Over time, it is the repetition of that “feeling”, over and over, in different settings and under different circumstances that will allow you to really judge any mediator.

And, then you can decide whether your mediator matters.  Or what characteristics of your mediator matter to you. Or what experience or credential.  But, it takes time and patience and repetition and thought.

Mr. Willoughby concludes, “Picking the right mediator constitutes the single most important decision (for mediation).”    If it is not your most important decision, I, for one, would like to know what is?

Comments are closed.

%d bloggers like this: