Choosing the correct Mediator can mean the difference between success and failure. But Mediators have different styles and philosophies, and each Mediator’s personality is unique. So which Mediator is the right one for you and your client? How do you decide? Here are five tips for you to help you make that important decision:
- Know the different styles of Mediators – There are three different styles of Mediators: Facilitative, Evaluative and Hybrid. Although there are articles that discuss other different styles, I find the other styles are just different variations of these three styles.
- The Facilitative Style – Mediators, who are facilitators, guide the parties to reach resolution of their dispute on their own. The Mediator will help the parties navigate through the negotiations process. The Mediator might suggest how to frame a demand or an offer. The Facilitator will never suggest how the dispute should be settled, rather, empowers the parties to be able to reach a resolution on their own.
- The Evaluative Style – For all you experienced litigators, you will remember that a lot of Judicial Pretrials are performed in the evaluative style. You go into a Judge’s Chambers, describe the case and the Judge evaluates the case and informs you how the case should resolve. Some Private Mediators use this style.
- The Hybrid Style – The Hybrid style of mediation combines the two previous styles. The Mediator will guide the parties through the negotiation process. If the dispute does not resolve, with the parties’ permission, the mediator may propose a path to resolution.
- Know the process the Mediator utilizes – Joint Sessions, Caucuses, Breakout Rooms? Ask how the Mediator will conduct the Mediation.
- Joint Sessions – The Mediator will have you and your clients in one room. The Mediator will have you and/or your clients talk about the dispute. The discussion will include the strengths and weaknesses of your positions. Joint Sessions may satisfy your clients need to be heard. The danger is that your client may say something that angers the other side or your client may hear something that hardens their position.
- Caucuses – The Mediator will meet with the parties separately. In the Facilitative Style, the Mediator may aid the parties in formulating a response to an offer or demand. In the Evaluative Style, the Mediator may discuss with you and your client whether or not your client will settle the dispute pursuant to the Mediator’s recommendation. The Mediator may go back and forth between the parties often making different proposals to settle the dispute.
- Breakout Rooms – If your Mediation is virtual the Mediator may create breakout rooms where you and your client will be sent. The Virtual Mediation will proceed as if in person using Caucuses. The Mediator will navigate between the breakout rooms and will even be able to create a separate breakout room to be able to talk to the attorneys outside the presence of your clients.
- Mediation Statements – Ask if the Mediator requires Mediation Statements. A Mediation Statement gives the Mediator valuable information and forces you and your client to review the case prudently in anticipation of the Mediation.
- Get to know the Mediator – You’ve asked the Mediator numerous questions. You’ve discovered what style he or she will utilize. You know the process the Mediator will use during the mediation. Now you need to get to know the Mediator as a person. You need to have a conversation with the Mediator. Does the Mediator’s personality mesh with what you think your client needs in a Mediator?
- Know your Client – The dispute is your client’s dispute, and the client will, ultimately, make the decision whether to settle or not. That being said, you, as the attorney, need to know your client. Which style of Mediation will work best for your client? Will your client rely on you to determine what amount is reasonable to accept? Is your client strong willed and has his/her own view of how to resolve the dispute? Does your client want to be in the room with you during the Mediation? Is your client intimidated by the system and would rather be available by telephone? For some clients, active participation can be a cathartic event. They feel they have been harmed and just want to be heard. Other clients find the process to be traumatizing and just want to get the whole thing over with so they can get on with the rest of their lives. Each client is different, so each Mediation and choice of Mediator needs to be approached with your individual client’s needs in mind.
Following these five tips will allow you to choose the Mediator that will have the best shot of helping you resolve your dispute.