Mediation

10. Choosing a Mediator — What You’re Looking For

The choice of the mediator is primarily your lawyer’s responsibility. But most lawyers consult with the client on the selection in an effort to dovetail the capabilities of the mediator with the facts of the case and the personalities of the parties.

The mediator is the only person who will be present when your opponent and his or her lawyer are considering settlement. Your top priority must be to select a mediator whom your spouse will respect and listen to. This requires the mediator to be knowledgeable about the subject matter of your case. If it is a child custody case, the mediator may need to be someone altogether different from a mediator who would be excellent at valuing the assets of a business. As strange as it may sound, the best way to select someone most likely to persuade your spouse may be to accept a mediator chosen by your opponent.

Picking a mediator with whom the opponent can identify can be of critical importance in avoiding needless litigation. Most trial lawyers have witnessed the “right” mediator “working miracles” in cases in which settlements were thought to be virtually impossible. I once watched a bitter five-year-old corporate lawsuit settled by a mediator in less than an hour. One of the corporate executives who was very angry about the case and had spent tens of thousands of dollars to keep it going was introduced to the mediator as being someone who had fought on the front lines in Korea. The mediator asked him the name and location of his unit. Being told that information, the mediator explained that he had fought with another nearby unit. Instantly a bond was formed between the mediator and this powerful executive who had previously blocked all attempts to settle. The executive, who had before been exceedingly agitated at the very mention of the lawsuit, became calm, listened intently to everything the mediator had to say, and shortly agreed to the very terms of settlement that he had consistently rejected for years. This example is unusual only in its drama and intensity. We humans are commonly willing to take advice from those we feel we can trust.

The mediator also needs to be someone who can add to your education about your own case. As a lawyer, I like mediators who talk directly to my client rather than to me. If, for example, the mediator is another lawyer who has tried similar cases, you will, in essence, get a second opinion about your case. I like it when my client gets a different perspective on the case from a knowledgeable person who has just come from a conversation with the opponent and his or her attorney. Sometimes my client may not agree with the mediator. On other occasions, what the mediator says may cause my client to change his or her mind.

And this is what decision making is all about. The client should have every available resource to make decisions about settlement. The lawyer is meant to advise, but if other advice is available, that too should be used.

Additionally, a good mediator can educate your own lawyer. This may sound strange, given the fact that you are paying your lawyer enough that he or she should already be educated. But, keep in mind, preparing your case for trial puts your lawyer at risk of schizophrenia. First, the lawyer, as your advocate, must focus on presenting the positive aspects of your case and minimizing its flaws. Simultaneously, your lawyer is obligated to provide “objective” advice about the merits of your case for your use in evaluating whether to settle. Needless to say, this is a lot to ask—even of a schizophrenic. Being a good advocate may cloud a lawyer’s objectivity. Likewise, being coldly objective may hinder a passionate presentation of the client’s position. This balancing is required of all trial lawyers. I, for one, welcome the perspective of a mediator who does not have the same attachment to my client that I do. Even if I disagree, which I often do, the mediator’s view usually provides me with information that can be used to advise and advocate better for my client.

Robin M. Green, Divorce: When It’s the Only Answer (The Ordinary Mortals Guide, Inc., 2005), Chapter 14, pp. 214-216.