Robert E.L. Wright
As mediation has become the preferred form of ADR in Michigan, the selection of a mediator has become a critical stage of the dispute resolution process. So how do you select a good mediator? Here are some answers based on an exhaustive 2008 ABA survey.
The ABA Dispute Resolution Section appointed a task force on improving mediator quality in 2006. Over the next two years, the task force conducted an intensive study of mediation and mediators to identify the top four qualities of the country’s best mediators, as identified by participants (counsel and parties). In 2008, the task force published its final report.
What were the top four mediator qualities identified by the task force? They can be characterized as the four “P’s”:
1. Preparation - both mediators and participants (counsel and parties)
2. Plasticity - customization of mediation process
3. Perspicuity - analysis of parties, dispute, possibilities, solutions
4. Persistence - sticking with the process and following-up after the mediation session
What do each of the terms entail? You can discover what they mean by asking a potential mediator the following questions.
Mediator Checklist
Preparation BY the Mediator. What does the mediator do to prepare him/herself for mediation? Does the mediator:
• Conduct a pre-mediation conference call with counsel?
• Meet with each side separately ahead of time or on the morning of the mediation session to check in with them and address any concerns they might have?
• Request and read mediation statements or summaries?
—Copies of pleadings?
—Expert reports?
—Other documents?
• Foster a constructive approach in their initial contacts with counsel or parties?
• Seek input from counsel on the process itself, such as whether opening statements would be helpful or issues which would be better addressed in separate session rather than joint session?
• Follow a set procedure or vary the procedure based on input from participants?
• Allow parties to speak when approved by counsel?
• Discuss offering their opinions and analysis before doing so?
• Discuss who will attend the mediation session and whether someone with settlement authority will be present?
• Discuss ideas about possible settlement options ahead of the actual mediation? (Asking whether: a tort plaintiff would be interested in a structured settlement; an employer would rehire an employee; a homeowner would accept repairs by the contractor; etc.)
• Ask whether additional discovery is needed before mediating and, if so, help identify what is required and facilitate its voluntary production?
• Ask about the current status of any settlement negotiations and the procedural status of the case?
• Seek potential roadblocks to settlement posed by personalities or emotions?
• Ask about any special needs or circumstances which need to be addressed for a successful mediation such as a physical handicap, a language barrier or the threat of violence?
Preparation of Mediation Participants. What does the mediator do to prepare the parties and counsel for the mediation? Does the mediator:
• Conduct pre-mediation conference calls or meetings with counsel and, if so, what does the mediator do to help prepare the attorneys and the parties for the mediation?
• Provide a letter or other document outlining the mediation process, what to expect on the day of the mediation, or a list of things for lawyers to review with their clients?
• Assist counsel to fully understand their client’s underlying needs and interests before coming to the mediation?
• Help counsel review their client’s settlement options ahead of prior to the mediation?
• Meet privately with counsel and parties to preview settlement offers or apologies to help ensure the best possible delivery?
Plasticity/Flexibility. Is the mediator flexible and willing to customize the mediation process to meet the needs of the parties and counsel, or are they locked into a one-size-fits-all approach?
Does the mediator:
• Insist on a specific timing for the mediation or is the mediator willing to adjust timing based on the needs and recommendations of counsel?
• Assist in the exchange of information needed for participants to meaningfully participate in mediation?
• Allow parties to make opening statements or prohibit them for fear of creating impasse?
• Insist on joint sessions or are they willing to forego or limit them?
• Only work in separate session, not allowing the parties to come face-to-face?
Perspicuity. Does your mediator possess sufficient process and analytical skills? Does the mediator:
• Ask pointed questions to identify issues which may lead to settlement?
• Have extensive mediation training, including advanced training, or only basic training and minimal advanced trainings (required to stay on a court list)?
• Have specialized training in mediating different types of disputes?
• Have experience mediating disputes similar to yours?
• Have training in different styles of mediation, e.g., transformative, facilitative, evaluative?
• Have they been acknowledged by an organization such as the ABA, State Bar, National Academy of Distinguished Neutrals, International Academy of Mediators, Professional Resolution Experts of Michigan (PREMi), etc.?
• Train other mediators or speak for an acknowledged or accredited group, such as the ABA, State Bar, PREMi, etc.?
• Help parties identify their strengths and weaknesses?
• Suggest options for resolution? If so, is the mediator capable of understanding the nuances of the dispute required to develop workable resolution options?
• Give an opinion on one or more issues if requested?
• Apply an appropriate amount of pressure to help move parties toward settlement?
• Have sufficient knowledge and expertise to gain the confidence of your client?
• Provide an evaluation of your case’s value (and only when requested and all parties agree)?
Persistence. Patience and persistence are two sides of the same coin. How diligent is the mediator? Does the mediator:
• Effectively use silence to generate responses or just sit there like a potted plant?
• Stick with it rather than throwing in the towel at the first sign of impasse?
• Keep the parties at the table even when it is uncomfortable?
• Identify future events which could change the current positions of the parties, such as a ruling on a motion or the outcome of a key witness’ deposition?
• Follow-up with phone calls or emails after a mediation ends without an agreement to ask how things are going and see whether they can be of further assistance?
• Try to get the parties back to the table if the mediation ends without an agreement when there appears to be a potential for settlement?
• Apply appropriate pressure (i.e., without intimidation or coercion) to motivate parties to settle?
In all of these qualities, the reputation of the mediator is key. Ask colleagues or even former adversaries about the mediator you are considering. What does the mediator do to conform their practice to the above qualities? Visit their websites to learn more about them. Are they members of a group such as Professional Resolution Experts of Michigan, National Academy of Distinguished Neutrals or the International Academy of Mediators, which only invite mediators with such qualities to join their rosters?
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Robert E. L. Wright is a pioneer in mediation and ADR in Michigan. After 24 years with a large Michigan firm, he left to develop his own arbitration and mediation practice, The Peace Talks PLC, and became a member of Professional Resolution Experts of Michigan (PREMi, http://premiadr.com). A perennial Best Lawyer™ and Super Lawyer™, Wright has spent over 35 years litigating disputes and representing clients in mediation. Since 2000, he has devoted himself to arbitrating and mediating disputes involving more than a thousand individuals and businesses. He mediates both business and individual matters, including high asset (and high conflict) divorces. Wright trains other mediators in both basic and advanced courses. In addition to PREMi, he is a member and past chair of the ADR Section of the State Bar of Michigan; ACR; ABA Dispute Resolution Section; current chair of the Grand Rapids Bar Association ADR Section; and a volunteer mediator for the Dispute Resolution Center of West Michigan. He was named Grand Rapids’ best lawyer/arbitrator in 2016 by Best Lawyer™ magazine and received the Distinguished Service Award from the State Bar of Michigan ADR Section for his tireless efforts to promote alternative dispute resolution throughout Michigan.
