The traditional way lawyers choose mediators is understandable.  You choose someone with a bunch of experience in the subject matter. No one can fault you later for choosing someone who has “seen it all before.”  Even if you don’t reach agreement. You’re safe.

There are limitations with that approach.  Here’s what I mean.

It’s certainly a common approach, at least for late-stage, litigation-context mediation. It’s borne of our adversarial experience. We’re thinking about trial, where the outcome will turn on what law is applied to what facts. So we’re thinking about hiring a mediator who’s also thinking about how the law will be applied to the facts.

A lot of lawyers think that a mediator who’s seen the same case a million times before will be realistic – which is defined, of course, as “seeing things the way I do.” They expect that the mediator, being reasonable and objective, will pressure the other side to see things more reasonably.

But here’s a secret mediator trick: when using that approach, we mediators never just pressure one side. Ever had a mediation where the mediator told you, “Gosh, Counselor, you’ve got a bang-up slam-dunk case!” Doesn’t happen much. If we’re looking for weaknesses and to shake confidence in expected outcomes, to loosen things up and create rooms for bottom-lines to move, we’ll do it wherever we find it. We’ll do it in the other room.  And we’ll do it in your room, too.

You may want that.  You may actually want someone to help you manage your client’s expectations. Someone to support you in your advice to them, help them think more reasonably about their case, and to encourage them into a settlement to avoid a trial.  If so, choosing a mediator who can put their case in a box for them could be just the thing.

There’s another limitation in choosing a mediator based on subject matter experience.

Consider that one of the ways you prepare your client is to tell them what a crap-shoot trial is. You explain that the judge is a generalist, not an expert.  You tel them the judge sees a different case everyday – many of them criminal – and doesn’t know the law as well as you and other experts in the field. So now you’re going to hire a mediator who, just like you, an expert in the field – maybe more so. How is that mediator going to somehow come up with a better prediction of a trial outcome? How is that expert-mediator supposed to predict what the unexpert-judge is going to do?

There’s a different way to choose a mediator. But it’s not for every case. And it’s not for every lawyer.

You may want for your client a mediation which is designed to reach agreement.  One that’s focused more on what it takes to get to that agreement and less on deciding who’s wrong and who’s right. A mediator with experience in consensus-based processes will be the better choice than one with a bunch of particular subject matter experience.

Concerned you’ll have to “educate” the mediator?  Maybe with some.  Not with me. In twenty years of litigating I rarely had the luxury of doing the same thing twice.  It was my job to learn a specific area of law better than the other lawyers who’d spent a lifetime at it, then beat them in court.  So lawyers aren’t going to be spending a bunch of time bringing me up to speed.

But because I’m not coming to a judgment, lawyers won’t live long enough to persuade me that they’re right.  They’re never going to get there.  It’s not going to happen. That’s because if I’ve come to the conclusion that one of you is right and one of you is wrong, put a fork in me – I’m done.

Think of it this way: there are already two very well-paid lawyers involved who know the law inside and out – and they can’t agree.  Why do you want to pay me for my opinion?  If what you really want for a mediator is a third legal evaluation, hoping it will back your side, I can certainly refer you to many.

If that’s what you’re looking for – a mediator who says he’s seen the exact same thing a million times before, so he’ll put you in a box with all the rest and tell you how it was in every other case he ever saw – there are scads of those.

It’s unlikely you’ll get a mediator with consensus-oriented process experience that way.  It’s unlikely because there just aren’t as many of us.  Might as well choose a mediator based on hair color.

If instead, you are looking for a mediator who’s going to see your situation with fresh eyes, and more to the point – help the other person see it with fresh eyes – give me a call.

It’s a very different approach, because it’s a very different process.  And now you get to make the choice.

This entry was posted on Tuesday, April 27th, 2010 at 11:35 am and is filed under Litigation, Mediation, Uncategorized. You can follow any responses to this entry through the RSS 2.0 feed. You can leave a response, or trackback from your own site.