What Kind of Mediator Do You Want?

This is an article published by John Watkins, a partner in the Atlanta office of Thompson Hine LLP. It provides his insight into the characteristics that he looks for when he is trying to select a mediator. 

Hopefully, this will spur your thoughts as to the issues that you should consider when you are selecting a mediator as well. It also could help you try to imagine what mediator your opponent is looking for -- and that may be the person who gets a tough case resolved.

Another question for debate and discussion: are there other characteristics that you look for in selecting a mediator that are not on here? If so, what are those characteristics? Why do you look for them?

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What Kind of Mediator Do You Want?

Although I serve as a mediator, my primary role is as a lawyer, representing parties in disputes. Thus, I am often called on to choose a mediator in a case in which my role is as an advocate. Because a dispute involves two (or more) parties, and because the mediator usually must be chosen by agreement, neither party can mandate a particular mediator. Similarly, neither party is obligated to agree to a mediator proposed by the other side.

There are many views on the characteristics of a good mediator, but here is what I look for:

• Willing to probe and ask tough questions. Back in the day, many viewed a mediator's role as "facilitative," meaning that the mediator was simply to facilitate discussions between the parties and never to express an opinion or an evaluation of the parties' positions. Many attorneys now derisively refer to such mediators as "note carriers." I agree. A mediator has to be prepared to reality test by asking hard questions when appropriate, and to try to move the parties toward settlement.

• Truly neutral. Although a mediator has to be willing to ask tough questions, I do not want a mediator who definitively favors one party's position over the other's particularly early in the mediation.

• Practical experience. A mediator needs to bring practical experience to help the parties resolve a dispute. Many lawyers reflexively turn to retired judges. Although retired judges can be good mediators and are particularly useful for some disputes, an experienced lawyer may be a good, and in some instances, better choice. Why? Because lawyers (1) likely have experience in settling similar disputes (as opposed to deciding them), and (2) may have a better understanding for practical and emotional client concerns that are often key to reaching settlement. Regarding the latter, I generally want the mediator, whether a lawyer or retired judge, to have had experience at some point in representing clients.

• Creative. Many disputes involve more than just a monetary component. A mediator who can bring creative ideas for settlement is extremely valuable.

• Optimistic. A good mediator has to be optimistic about reaching a dispute. Optimism, coupled with a dose of dogged determination, keeps the parties talking and increases the possibility of a settlement.

Although there are other qualities that can be important, a mediator with these qualities will probably be near the top of my list.