The right mediator and the right process are critical. There is not one mediation style or one mediation process that fits all disputes. One of the greatest benefits of mediation, like other forms of alternative dispute resolution processes, is the mediation event can and should be flexible and specifically tailored by selecting the “right” mediator with the “right” process best suited to resolve your unique dispute. The mediator’s personal style, as well as the mediator’s knowledge, background and experience, are critical factors to consider.
Many competent and effective mediators eschew caucuses and meet with parties almost exclusively in joint sessions; others do not use joint sessions at all. Some are more “evaluative” others prefer a “facilitative” model and yet others gravitate to an “analytical” or “transformative” style. The process that maximizes the potential for success depends upon the particular needs of the parties and the dispute.
In a recent study on ADR practices at Fortune 1000 companies, it was determined that the following factors were utilized in the selection of a mediator (1 being the most important):
It is critically important the mediator have the trust (more on this in the “Think 'Team' and Harness the Power of Positive Conflict" tip) of the attorneys and their clients and, in many cases, once an attorney is content the mediator recommended by opposing counsel is knowledgeable and guided by the right process, that attorney will often defer to the recommendation(s) of opposing counsel. It does not bode well for a successful mediation to battle over a mediator who is not trusted by opposing counsel. Selecting the “right” mediator with the “right” process is more important than selecting “my” mediator.
As discussed in the “Prepare and Then Prepare Some More” tip, a successful mediation demands meticulous preparation; the parties should expect no less of the mediator. If a party wants a mediator to pursue a process that is most effective for the dispute at hand, be creative, surface and explore realistic options, raise realistic risks, and exercise wisdom based on experience, the mediator must also be well prepared. Experienced trial counsel always selects a mediator who is as committed and willing to work as hard as they are and engages in effective pre-mediation practices and discussions to prepare for the mediation.