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Picking Your Mediator Should Be Like Picking Your Jury

August 4, 2011

Lawyers know or should know that “picking a jury” is really not about “picking” at all.   Proper jury selection is rather all about proper, considered, and individual juror rejection.

No party to any jury trial ever really gets their “pick” of any jury pool.  However, preparation and voir dire efforts do permit parties to form for themselves an ‘acceptable’  jury by their thoughtful rejection of  jurors.   And, thus, both sides of an issue have jointly “selected” their jury by simply rejecting  jurors that they felt were not suitable to that particular dispute and accepting other alternatives that were.

The same should be true when mediating parties, or their representatives, are “selecting” their mediator to assist them in the resolution of their particular dispute.  Neither party or side should ever be permitted to simply unilaterally “pick” the mediator of their choice, alone.  Rather all of the parties must conclude, jointly, that the mediator selected is acceptable to all.

And the same thoughtful analysis, by both sides, should be given to the rejection/selection of  their mediator as is considered when accepting their jury.  Remember, in mediations, there is rarely a “one size” that “fits all”.

First, what is the subject matter of your dispute?  What key issues are central to a resolution of your dispute?  How do you perceive the role you wish your mediator to play in this mediation?

Second, what kind of mediator will be the most helpful to both sides of this particular dispute?  Who really “needs” the mediator the most in finding some common ground?  What traits have you found the most helpful in prior mediations?

Third, what credentials, if any, will the mediator of your dispute require in assisting the parties to a voluntary resolution?  How will you or your client perceive and accept recommendations of any particular proposed mediator?  What credibility will they have with you?  What credibility will they have with your opposition?

Fourth, what advance preparation assistance, to either or both sides, can and will your mediator be?  And, at what dollar cost, if any?

After evaluating these core considerations for mediators you wish to propose, you should create and then rank your “short list ” of  three to five proposed mediators that seem to fit the factors you deem important to you and that should be important to your opposition.

But, unlike the unspoken desire when selecting a juror to seek someone “who looks like you”, rather, when seeking a mediator you must find someone who both sides will find helpful to finding resolution.  “Someone who looks like you” will likely look the same to your opponent and thus, have little credibility beyond you to your opponent!

Your next step is to schedule an actual mediator-selection process with your opponent.  Preferably in person.  But, never delegated and always at least in a conference setting allowing time for discussions of your rationale for your proposals and listening to the reasoning of those proffered by your opponent(s).

Remember, your ultimate goal is NOT to get “your” mediator, but rather to find mutual agreement upon the mediator that all of the participants concede give all their best joint opportunity for full discussions and consideration of the opinions of all.

If any proposed mediator is one that you strongly feel would not be useful to you, and you can rationally explain why, you must “strike” that mediator proposal while simultaneously offering a cogent reason for doing so.  And, then, either propose a reasonable alternative, or keep an open mind on the next proposal from your opposition’s list.

And, if one of your proposals meets with a rejection, request a valid reason for the rejection, note it for future consideration and simply move on to another on your pre-prepared list of alternative proposals.   Your first choice may be more suitable for some other mediation.

If, as some feel, you want to have the greatest chance of one of those you believe to be the better choice being agreed upon, you must try to first propose those upon your short list, first.  And, be prepared to not always obtain agreement upon your first choice.  In fact, if you feel strongly about a mediator and you believe your opposition will never accept your first suggestion, consider suggesting another acceptable choice first.

Or, you may wish to agree to alternate proposals until a single suggestion by one meets the needs of all of  the opposition.  You may be pleasantly surprised that a mediator you find qualified for your mediation is also found to be qualified by the opposition.  Similar to jurors, you are simply seeking a reasonable agreed mediator, since it should be difficult to get only the one of your choice.

In the end, however, it is being active in the selection of your mediator that is most important.   You will be active in picking your jury, be just as prepared, thoughtful and active in picking your mediator.

For additional thought to this central theme of actively obtaining the right mediator for each mediation, see some earlier of my blogs on the subject, including,  “Be Active In Jointly Choosing Your Mediator, December 31, 2010 and“Mediation Strategies”: Does (the Experience of) Your Mediator Matter?, May 2, 2011.

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