A Suggested Protocol for Finding a Mediator
The following is a suggested protocol, based on Guided Choice concepts, for choosing a mediator who can facilitate the earliest possible settlement. This protocol is useful in several situations – if your pre-or post dispute agreement requires mediation, if the court system requires it, or if a party wants to explore mediation even in the absence of a legal requirement or universal agreement among the parties. Parties considering mediation should consider the following:
- Unlike choosing arbitrators, choosing the appropriate mediator should not just be based just on a curriculum vitae. Nor should it be based only on responses to general emails that ask: “Is X a good mediator?”
- The mediator must be good at diagnosing the causes of impasse and solving problems creatively. The mediator should understand the consequences of the alternatives to mediation. Finally, the mediator should understand the business issues and the human and organizational characteristics that affect decisions to change or not change positions.
- Therefore, parties should interview mediator candidates before choosing one. Interviews can be held by telephone or video call, in person, or through a questionnaire. These interviews could be done ex parte or in the presence of all the attorneys. If an agency is administering the mediation, the case administrator should be aware of your interview requirements when before recommending a mediator.
- Parties will want to learn about the candidate’s mediation style. Good questions for discussion would include the following:
- How would the mediator interview the lawyers and other parties connected to the dispute? Conversations may the parties, any other decision-makers, and experts so that the mediator can diagnose the causes of the current settlement impasse.
- How would the mediator deal with any cultural characteristics of the parties and their decision-makers?
- How would the mediator work to get the earliest possible settlement?
- How would the mediator handle insurance coverage issues?
- How would the mediator handle issues involving non-parties who are critical to settlement, e.g. indemnities and governmental agencies?
- What activities does the mediator consider to be important before the parties start negotiating?
- How would the mediator recommend a mediation process after investigating the reasons for impasse?
- How would the mediator handle situations where any of the parties believe they need information not in their possession to evaluate settlement positions?
- How would the mediator help the parties understand that impasse is not unusual, especially the parties lack information? How would the mediator convince the parties to agree to continue to negotiate using the mediator as a facilitator, even if litigation or arbitration resumed? Under what circumstances would the mediator consider recommending that the parties obtain limited opinions from experts, arbitrators, dispute review boards, Adjudicators, Initial Decision Makers, etc. to break an impasse while continuing the mediation?
- A top mediator should be able to design an effective early settlement process that is agreeable to the parties. This process should be based on all the factors which have led to current stalemate. Mediators, rather than the parties or their attorneys, are best at settlement design, because they can have confidential discussions to determine the reasons for impasse.
- If the parties have or are willing to consider an agreement to arbitrate, would the mediator consider helping the parties customize an independent arbitration process by focusing the hearing on the important issues that appear to be impeding settlement? Normally, the mediator would not be the arbitrator.
How to Determine Whether the Mediator Follow the Principles of Guided Choice
Mediators who understand the importance of early dispute resolution are willing to include in their resumes an acknowledgment of their understanding and willing to use the principles of Guided Choice. See discussion at the page on Branding of Mediators.