How to Select a Mediator 

Published in The Advocate

December, 1994

By Thomas Noble

Dallas, Texas

EPIDEMIC OF MALPRACTICE CASES!

LAWYERS NEGLIGENT IN SELECTION OF MEDIATORS.

 Headline of Texas Lawyer

(circa 2000 a.d.)

There is a "best choice" of mediator for every dispute. Too often we litigators neglect this selection process. We allocate client resources to weightier subjects. We pass files on to associates and paralegals to "prepare for mediation" with little direction. We accept the court's choice of mediator. We believe that "this case will either settle in mediation or not." We assume incorrectly that one mediator is just as good as another is, and that if a case is not settled during the first mediation session it cannot be settled. The diligent among us research the legal issues and thoroughly investigate the facts prior to mediation. Few of us research the issue of who is the best mediator for a particular case.

Is it really important to carefully consider the issue of "best mediator"? Consider the following:

• The parties to any dispute have invested their time, egos, emotions and, usually, their money. In many cases, these investments are substantial in comparison to the issues in dispute.¹
• Parties are often skeptical about the prospects of mediation. They incorrectly believe that if they and their attorneys cannot resolve a problem, it cannot be resolved.
• The "wrong mediator" is more likely to fail in earning the respect of the parties. This confirms the parties' negative preconceptions and may cause negotiations to break down permanently.
• When negotiations break down, or when the parties believe that negotiation is not making progress towards resolving their dispute, they will naturally seek other methods of dispute resolution.
• Other methods typically involve confrontation, intimidation, and various tactics designed to produce a win/lose result. Regardless of the methods employed after a failed mediation, the parties will make additional investments of time, egos, emotions, and money. These investments may take the form of fees paid to a law firm. They may also take the form of fees incurred but unpaid.
• In a "best case scenario" after negotiations have broken down, the trial is won, all appeals affirm the verdict, and the investment made into the adversary system is paid back with handsome dividends.
• In a "worst case scenario," the trial is lost, all appeals have failed to undo the unjust travesty wrought by a biased judge or jury, and either the client has spent substantial fees or the lawyers representing the client have invested a substantial amount of time on the litigation process without compensation, or both.
• If the case has been handled on a contingency, the plaintiff's lawyer picks himself up, dusts himself off, and moves on. If the case has been handled on an hourly basis, a receivable may need to be collected or negotiated. Regardless, the losing cause is examined with the cold hard eye of hindsight. Decisions made along the way are questioned. Many times malpractice suits are filed in an attempt to recoup losses or in response to suits to collect unpaid fees.
• If a lawyer is questioned about how much effort he devoted to attempting to reach a settlement, or about how much time he spent negotiating as compared to the time spent on purposeless document requests and meaningless motions, will his efforts stand scrutiny? If asked why he spent six hours preparing for and taking the deposition of a witness who was not used by either party, while he spent less than an hour selecting a mediator, will he have a ready answer? Will our luckless warrior be able to say that the selection of the mediator was made after careful analysis and a thorough discussion with the client considering a number of factors?

If you are persuaded that careful selection of a mediator is good practice, how should you select a mediator? The ideal mediator possesses a combination of the following four traits:

1. Mediation Skill and Experience;
2. Neutrality;
3. Compatible Style; and,
4. Subject Matter Expertise

It does not take much for a mediator to "hang out a shingle." To date there is no licensing process for mediators. Anyone can call himself or herself a mediator. Most mediators will take at least a 40-hour course on basic mediation skills in order to give themselves some credibility and improve their chances for building a practice through court appointments. Family law mediators usually take an additional 24 hours of family law, family dynamics, and child development in order to comply with the requisites of TEX. CIV. PRAC. & REM. CODE § 154.052(b). While such courses are important, they should be viewed as minimal qualifications for mediating simple disputes.

"Serious mediators" will have vast numbers of continuing education hours in advanced mediation and negotiation courses in addition to numerous prior mediations. The careful practitioner should always ask for a mediator's vitae or resume in order to discover his prior mediation experience.

Be wary of statistics, however. The most common statistical method that mediators have developed to measure (and market) their skill and experience is their "total number of mediations." In comparing statistics, consider the fact that a mediator who mediates three one-hour mediations in Justice Court appears more experienced than a mediator who mediates a multi-party mediation involving zillions of dollars and lasting several days.

Many mediators who have seen only light duty find various ways to inflate their statistics. For example, the divorce lawyer who has practiced for ten years and who settled 500 divorce cases before becoming a mediator may advertise that he has "participated in 500 settled cases", although he has mediated only a few. Others advertise that they have "participated in" a certain number of mediations leaving the consumer left to wonder if a mediator can gain experience by showing up at a mediation as a party's advocate.

Many attorney-mediators are trial lawyers or former trial lawyers and market themselves accordingly. Seasoned trial lawyers are not necessarily good mediators. There is a popular notion that because the seasoned trial lawyer has presented many cases to many fact finders, he is an accurate prognosticator of how a particular dispute will turn out, and this clairvoyance can be used to resolve the dispute. Mediation requires skills and characteristics that trial lawyers do not necessarily need or develop. Patience is an example. I know an excellent trial lawyer who has recently become a mediator. When he appears in Court he is well prepared. His examinations and arguments are crisp, intelligent, and to the point. Win or lose, he consistently does a good job. As a mediator, however, he is too impatient with the negotiation process, too eager to chalk one up as a case that "just needs to be tried". As a trial lawyer, I can act intimidating, disagreeable, and short-tempered with my unreasonable adversaries. As a mediator, I do not have the same luxuries. One might even conclude that the traits of a good trial lawyer are antithetical to those of a good mediator.

This is not to say that an individual who has succeeded as a trial lawyer cannot also succeed as a mediator. Indeed, I enjoy both an active trial practice and an active mediation practice. As a family law mediator I find that appearing in court gives me greater insights into a judge's predispositions on various policy issues such as joint custody, child support for high wage earners, and possession schedules for infants. But the roles of trial lawyer and mediator do not necessarily go hand-in-hand. When you are selecting a mediator, remember that a seasoned trial lawyer does not necessarily possess competent skills as a mediator.

I often ponder whether "neutrality" really exists, or whether it is a fiction we have created because it makes reality more palatable. Regardless of your personal opinions about the metaphysics of neutrality, in order to select the best mediator for your case, you must determine if he is aligned with, or biased in favor of, your opponent. Think of this as a sort of "voir dire" you will conduct with prospective mediators. Interview each prospective mediator and inquire into biases, prejudices, prior cases with opposing counsel, prior relationships with the parties, witnesses, etc.

The style of the mediator is critical to the success of every mediation. I have seen good mediators fail miserably because their styles were incompatible with the personalities of the attorneys or the parties participating in the mediation. Some common examples of incompatible style are as follows:

• A mediator who employs long caucuses in a dispute involving short-tempered, fast negotiators.
• A mediator who likes to start late in the day and work late into the night in a dispute among a group of early risers who tend to nod during afternoon sessions.
• A mediator whose office is not in a convenient location.
• A mediator who believes that lawyers should not be involved in the mediation process (common in family law cases) in a dispute where complex legal issues are critical to resolution of the dispute or where one of the lawyers is necessary to equalize the bargaining positions of the parties.
• A mediator who will not mediate without the participation of lawyers in a dispute where the parties cannot afford to pay their attorneys to participate in mediation.
• A mediator with a "lowest overhead possible office" in a dispute involving people who dine regularly at The Mansion.

Subject Matter Expertise

As attorneys have entered the mediation field in droves over the past several years, the issue of how much subject matter expertise a mediator needs to effectively mediate a particular dispute has been debated. Mediators with substantial subject matter expertise in a particular area will avow that such expertise is critical to effective dispute resolution. Mediators with no particular subject matter expertise respond by saying that subject matter expertise is vastly overrated; a skilled mediator can confidently approach any dispute with a tabula rasa, possessed only with the Socratic skills of an objective, neutral, lean, mean, problem-solving machine relying on the parties to provide the information necessary to resolve the dispute.

Your "best choice" of a mediator will have some familiarity with the subject matter of the dispute. It is absurd to suggest that a mediator with a background handling auto collisions is a good choice to mediate a complex custody case, or a will contest, simply because he has mediated two hundred four-hour mediations. On the other hand, subject matter expertise alone does not assure that a mediator is a good choice. A mediator with substantial knowledge of real estate law and few skills as a mediator can be just as ineffective in resolving a landlord-tenant dispute as a mediator with no knowledge of the Property Code. Indeed, when subject matter expertise is compared with mediation skills and experience, skills and experience win hands down.

The experienced mediator, like a good general practitioner, will learn what he or she needs to know to understand the problem that needs to be solved. He will then apply his mediation skills and pierce the problem like a bad blister. The process of educating the mediator about the subject matter of the dispute, however, can be time consuming. Therefore, in complex cases a mediator with limited knowledge of the subject matter of the dispute should be rejected.

The inexperienced mediator who has achieved some mastery over the subject matter knows the "answer to the problem", but may be devoid of the tools and techniques necessary to bring the parties together. No matter how much he knows about the applicable statutes, he simply has not built enough bridges over troubled waters to be effective. Because mediation is a skill that is learned primarily by doing, there is no book one can read to get "up to speed" on mediation skills. The blister has a much better chance of survival under the dull knife of a mediator who possesses subject matter expertise but limited experience as a mediator.

What sources of information are available about mediators? If you are looking for a mediator for a particular case and do not know where to find one, what should you do? You might consider starting with professional associations in your community or in the closest metropolitan area.

The Association of Attorney-Mediators is one such group based in Dallas but with chapters in many major cities. A.A.M. will provide information about each of its members, each of whom is an attorney, including the mediator's prior training, qualifications, areas of subject matter expertise, number of completed mediations, and fee structure. In order to become a member of A.A.M. a mediator must have practiced law for at least eight years, he must perform at least ten mediations per year, and he must have been trained by an organization approved by A.A.M. For more information about A.A.M., call (800) 280-1368.

The Texas Association of Mediators is a non-profit organization of attorney and non-attorney mediators. In order to become a member of T.A.M., a mediator must have a graduate degree, two years experience in the mediator's field or practice, and forty hours of mediation experience; or, ifthe mediator does not have a graduate degree, four years experience in his field of practice and one hundred hours of mediation experience. Additional information about T.A.M. can be obtained by writing to P.O. Box 191208, Dallas, Texas 75219-1208.

Once you have chosen a list of prospective mediators, request a vitae from each. After you have reviewed each vitae, call each prospective mediator and inquire about his prior mediation experience, his neutrality, his particular style of mediating, and his prior experience with cases having similar subject matter. Carefully question each candidate, then summarize your findings in a letter to your client. Let the client pick the mediator, or confirm in writing his instructions, which give you discretion to make this decision. If you do all of that, you will never be vulnerable to malpractice claims for failing to use due diligence in selecting a mediator and, more importantly, you will resolve more problems to your clients' satisfaction.

ENDNOTE

1. The most ridiculous example of this principle is the case in which the legal fees exceed the amount in controversy. The issue of which party should pay his opponent's attorney's fees takes on a life of its own while the original dispute becomes increasingly insignificant.