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Mediation Preparation: Start/Maintain Your Own Short List of Trusted Mediators

May 18, 2016

Are you ready to schedule your next mediation?  Really ready?  Among other practical questions you should ask:  Who will be your Mediator?  And, does it really matter?

Answer:  Yes, but, not necessarily for the reason most believe.  Mediators do not resolve any dispute; parties and their counsel do.  But the best mediators are critically important for actively aiding those parties and their counsel, before, during and after formal mediation, in finding that common ground that is absolutely necessary for every ultimate voluntary resolution.

And, if resolution if not obtainable at any one mediation, the better mediators work to make the entire formal mediation process as valuable as possible to all of the participants for potential future resolution.

But, the best counsel know that in choosing Mediators, truly, “one size does not fit all”.

Accordingly, regardless of who initiates the scheduling discussion, the next time your opposition proposes not only potential dates to hold your next mediation but further nominates “their” mediator to serve, if necessary, will you be prepared to properly and timely respond with your own reasoned-nominee?  See, Be Active in Jointly Selecting Your Mediator”, December 31, 2010.

In short, do you have YOUR own “short list” of trusted (and maybe another for not-so-trusted) mediators at your fingertips?  And, with actual notes of your own Mediator experiences, good and bad.

Will you have substantive objective notes already handy about your opposition’s mediator nomination?  (Particularly if it is one who they routinely “insist” upon.  i.e., Can hiring repetition or one-sided over-familiarity, alone, affect any Mediator’s neutrality; conscious or unconscious?)

Will you have a counter-proposal for a Mediator-nomination of your own, and substantive reasons why your nominee is a better fit for your particular client/dispute than their nominee?  See, “Mediation Strategies:  Does (the experience of) your Mediator Matter?,  May 2, 2011.

Is your objective, substantive information easily available to you if you are not immediately totally comfortable with your opposition’s nomination in THIS matter?  See, “Picking Your Mediator Should Be Like Picking Your Jury”, August 4, 2011.

And, have you ever really considered why your opposition wants (sometimes “insists upon”) “their” mediator?  What explanations do they give? And, can only one mediator, theirs, a facilitator under Florida law, really be the only possible truly neutral person to serve both sides?

Or, whether one you would counter-propose could/would be a better fit for you,  your client or this case?  And, often, even better for both sides?

If you answered “no” to too many of the above questions, then it is clearly time for you start and maintain your own short list of trusted mediators.

Many believe it is the mediator, alone, who “makes the difference” in a large number of mediations.

Personally, I believe mediators, much like parents, receive far too much blame for mediation failure and far too much credit for mediation success.  Many failures, and most successes are almost always the simple result of appropriate advance planning and preparation (or not) by BOTH sides and their counsel.

But I also firmly believe the properly chosen mediator can greatly enhance the value of any mediation experience  whether to an immediate voluntary resolution or to a timely, better informed advancement to a later resolution.  Although the ultimate goal of every mediation is resolution, there are a multitude of other very valid uses for mediation if resolution if not then possible

Accordingly, as you contemplate scheduling your next mediation, at the least, always be prepared to have at least one to three “trusted” names to counter-propose during your mediation selection discussions.  (Or, if not, be prepared be forever saddled with your opponent’s choice for “your” mediator!)

Therefore, after first creating your all-important mediation “bible”, your Mediation Notebook, See, “Mediation Tip:  Start/Keep a Mediation Notebook”, July 10, 2014,  every lawyer must also have and maintain their own “short list” of trusted mediators.

You can easily begin this Mediator Notebook (or subdivision of your Mediation Notebook) by creating a complete list of mediators that have already served you in previous mediations.

For each such prior mediator, at a minimum, you should obtain a written copy of their credentials before becoming a mediator.  All humans are a totality of their life’s experiences.  You should know those of your mediators..

You should also keep a list of each mediation that they served you upon, your opposing counsel and the outcome at mediation.  And, if not resolved at mediation, your ultimate dispute outcome, as well; many seeds sown in formal mediation take time to bloom.  See, “Your Mediator:  These Days Best Considered a Farmer?  October 21, 2015.

Most importantly, you should always make short notes, immediately post mediation, about the mediator’s strengths and weaknesses that you observed or felt in that mediation, including pre and post assistance.  At the least record your mental impressions as to whether that mediator was “helpful” to you and your client as the mediation progressed.  (“Helpful” will always be in the eyes of the beholder, but it may be the most objective test you have.)

Of these, mentally rank them , one against the other, until you have a weighted list of at least three, first to last, to choose from in the future.

And, of course, depending upon your particular subject-matter practice, you will also want to rank them by dispute subject-matter as well.  Different techniques and personalities will work differently in different types of cases.

Obviously, once you have this BASIC list to the extent your complete weighted list on the dispute subject is available to the dates you need, you will then always have your “short list” or the top two-four to suggest/choose from, easily available.

And, frankly, please also keep a similar (hopefully VERY SHORT) list of those to whom, for valid, objective reasons that you can/will express to the opposition, you simply would prefer to totally refuse “their” mediator for your mediation and have the Court order a total unknown to both sides than submit again to another mediation by that mediator!

Once you have your basic notebook/list, you can next also add to your existing list(s) by inquiring of recommendations from others with a similar practices in similar disputes.  Make sure you inquire as to the reasoning behind the recommendations; pro and con; i.e., the ‘helpfulness”.  (or not).

For these, then begin to obtain the same basic information as you have for the others you have on your list.  Now you are in a good position to give one or more of them a try the next time all of your “top two-three” are simply not available due solely to scheduling or simple total rejection by the opposition.  See, “Fall, A Wonderful Time of the Year to Try a New Mediator”,  October 5, 2011.

And, of course, on those others, not on your list, where you gave in to the insistence of the opposition (or the Court elects someone new to both sides), repeat the same practice of adding them to your list with collection of information and recording objective, substantive notes.  At the least you will be able to either quickly reject or quickly accept your opponent’s nominee the next time they are proposed, but this time with actual grounds you can objectively express.

This may sounds like a lot of work; particularly if you already think you have such a “list’ in your mind due to your longer practice.  But, busy people have a lot on their mind.  And, if you begin this practice, even now, like any other critical “tool” of your practice, this Notebook/List will become much more valuable with time as you merely supplement what you already have.

And, trust me, it will pay substantial mediation dividends for you and your clients.

Now, your friends will be calling YOU for your input on their mediator choices.

Dan, from Gainesville, Florida.





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