Arbitration & Mediation

The Lawyers Speak: What Counsel Look for in a Mediator

By Victoria Pynchon

Take a look at the answers Colm Brannigan has gotten on LinkedIn to his New Year's question:  What Qualities Do Counsel Look for in a Mediator here.

This is a topic about which there should be an on-going conversation between lawyers and mediators.  We have the identical goal -- to maximize the value available to all parties to settle intractable litigation.  Collaborating on the best ways to reach that goal is in all of our best interests.  Let's keep the conversation going and thanks to Colm for beginning the new year in this fashion.

Excerpt from one of the fine answers to this question -- by Sheppard Mullin attorney Jim Burgess below and link to Colm's website here.

First, a good mediator will be tenacious in pursuit of a final settlement. Such tenacity entails thorough preparation, spending sufficient time during mediation (even going over if necessary) and scheduling follow up if the case does not settle during the mediation session. I had a mediation once that started in the morning, lasted all night and ended (successfully) the next morning.

Second, a good mediator must be intelligent and able to learn. Technical knowledge may be needed in certain cases, but it is not essential in most cases. I assume that whatever knowledge the mediator needs I can provide. So, another quality is that I need a mediator who is intelligent and able to adapt to new information.

Third, a good mediator must have significant experience with the litigation and settlement process. Such real world experience enables the mediator to read people in terms of what is driving the litigation. But, there is no substitute for understanding that the settlement process is a little like the grieving process (denial, anger, bargaining, depression and acceptance). The process must play out for both sides and a good mediator will steward the parties through that process. There is nothing worse than having a mediator try to short circuit the process by jumping to a discussion of money. I have found that former judges often have the experience needed to be successful mediators.

Fourth, the mediator must be honest. I do not appreciate having the mediator regurgitate the other side's position if it is patently ridiculous. By the time I get to mediation, I will understand the strengths and weaknesses in my case. But, I need to trust the mediator. My clients will not trust a mediator who does not give an honest or intelligent evaluation. Also, a mediator must be careful not to give an evaluation either too soon or which is overly negative. By the time the mediator actually expresses an opinion (if at all), the mediator should fully understand the mood of the room and how that opinion will be received. The only point of giving an evaluation is to facilitate settlement.

Finally, the main advantage of mediation is that it allows the attorney to preserve his or her integrity and relationship with his client while the client makes a decision to settle. A good mediator will not embarass either counsel, will not undermine the attorney-client relationship and will work with counsel to get a final result (since that is the whole point of participating in mediation in the first place). Joint meetings and opening statements are rarely productive and often make settlement more difficult.

Thanks for taking the time to share these insights with Colm and the rest of the LinkedIn legal community Jim!

Full post as published by Settle It Now Negotiation Blog on January 07, 2008 (boomark / email).