Often we hear litigators state simply that whomever the opposing lawyer selects will be fine. The theory is, "I know what we need to settle, and if the other guy is happy with his favorite, that's fine with me.”
That approach may simplify getting the mediation scheduled; however, it may represent a missed opportunity to find someone equipped with traits particularly suited to the given case and situation, greatly increasing the chances of achieving a satisfactory settlement. Better to gently insist on some mutual due diligence, while preserving the goal of ultimately finding someone with whom your opponent is comfortable.
In recent years, thousands of recently minted mediators have become certified and are offering their services. Many, while having had distinguished judicial or practice based careers, are struggling to win mediation assignments. It's difficult to acquire a body of actual mediation experience in sophisticated, challenging litigation matters. Accordingly, the interactive "people handling" skills acquired over time while mediating hundreds and even thousands of complex cases over a career have yet to be developed. At a minimum, insist that any mediator selected have the necessary experience in handling that level of case before considering him or her. Be more focused on reputation for handling multiple parties and sophisticated, challenging legal issues than the specific subject matter at issue. Veteran mediators can quickly get up to speed as to subject matter. It's the overall case management, process design, preparation and follow-up patterns that you should seek.
The better mediators are well known to leading practitioners in every community. A few telephone calls can quickly determine a candidate's reputation for preparation, patience, and perseverance, three qualities every mediator should seek to develop. Consider a telephone interview; see if a candidate inspires confidence in the give and take.
Determine if the mediator's charges are in line with the matter at issue. The most popular and heavily booked mediators generally charge $500 per hour and higher. Preparation, travel and follow-up can be expensive. A judgment has to be made as to the amount at stake, and the potential savings in transaction costs that might be saved with a successfully negotiated settlement. In a multiple party case with millions of dollars at issue, and hundreds of thousands of potential costs and attorney’s fees, a potential $10,000 mediation fee split four ways is a modest investment, and one that is probably necessary to effectively address a case of that magnitude. On the other hand, bringing in someone at that level on a two party case with a $50,000 demand makes little sense, absent some serious underlying dynamic that mandates the case be settled, and justifying bringing in the "big gun." These smaller cases are where all mediators gained experience years ago, and are appropriate referrals to newer mediators.
Ideally, the candidate you select has had dealings with opposing counsel and the claims representatives for the opposing party. Relating back to point one, if this is the case, and the candidate passes muster on the traits and qualities described above, you and your client are in the best possible position. An experienced, skilled mediator with a reputation for perseverance and "closing the deal", who your opponent likes and is comfortable with, is best positioned to fashion an equitable negotiated settlement.
John Upchurch is a principal mediator at the firm of Upchurch, Watson, White and Max. For more information visit John Upchurch‘s biography!