Selecting a Mediator for Commercial Matters

December 22, 2022 –

In our previous post, we explored where to find lists of potential mediators to assist in resolving a dispute.  If the parties have contractually agreed to use one of the major mediation organizations or service providers, including, for example, the American Arbitration Association (“AAA”) or JAMS, the parties can provide a basic description of the matter and the identification of the parties and their counsel.  The organization staff will then send them a list of potential mediators who are available to rank and who have already been screened for potential conflicts using the information provided.  In other cases, in which there is no contractual requirement to use a particular service provider, counsel for the parties may want to exchange and consult a list of potential mediators that they have each prepared and, if an agreement can be arrived at, reach out to the mediator directly.

In this post, we review the factors to consider in selecting the mediator.

What Professional Background Should the Mediator Have?

The parties to a dispute should take several factors into consideration when selecting a mediator, including the mediator’s background and experience.  In some cases, the parties may want a former-judge or magistrate.   In others, they may prefer a practicing attorney, which may either be a litigator or a transactional business lawyer with deal-making negotiation skills.  When a particular industry, custom, or practice is involved, knowledge and legal experience in that specific business area may be useful.

In certain cases, the parties may want to select a person with industry experience who is not a lawyer, but a dealmaker with relevant expertise or, in other cases, where accounting issues may play a great role, a mediator with a strong background in accounting or auditing may be particularly helpful.

What Experience Does the Candidate Have in Mediation and What Is Their Track Record?

Prior experience as a mediator is of paramount importance, however.  The skills of the mediator are different from those of an advocate in negotiation, arbitration, or litigation.  They are also different from those of a decision-maker, such as a judge, magistrate, or arbitrator.

So, while experience in other areas may be very beneficial, the most important experience to look for in selecting a potential mediator is that person’s training and experience in mediation, in arranging joint sessions, in conducting separate caucuses with the parties, and familiarity with the ethical duties and limitations inherent in the role of a neutral mediator in a confidential mediation.

One of the advantages of selecting a mediator on the roster of a major organization like the AAA or JAMS is that they have received the necessary mediation training required to be on those organizations’ rosters and have access to experienced staff with expertise with whom the mediator can consult about procedure and process.  Mediators affiliated with such organizations will also have access to the staff and resources to handle the logistics of the mediation, including the necessary office space and technology to facilitate the exchange of selected documents, joint conferences and separate caucuses with the parties and their counsel, both in person and remote via Zoom or other communication technologies.

The qualities and skills to look for in a mediator, whatever the background, also include the ability to identify the stated and sometimes unstated needs and interests of the parties, the ability to manage conflicting egos, confidence, listening skills, honesty, compassion, patience, flexibility, creativity, analytical skills, neutrality, and discretion.

More generally, the parties should understand the mediator’s approach to the mediation: is the mediator’s approach more facilitative or is the mediator more likely to act as an “agent of reality” for the parties?  Mediators most often include their views on the mediation process in their biographical materials or in published articles which should be reviewed carefully by counsel.  The mediators affiliated with the major service providers often include a short video by the mediator explaining their background and approach.  Beyond that, it is also helpful to consult with other lawyers or parties who have had previous experience with the mediator to obtain their insight and evaluations.  If possible, the parties should also investigate the mediator’s track record and success rate in achieving a settlement.

Actual, Potential, and Perceived Questions Regarding Impartiality or Conflicts of Interest?

Under the American Bar Association Model Standards of Conduct for Mediators (the “ABA Standards”), “a mediator shall decline a mediation if the mediator cannot conduct it in an impartial manner,” meaning “free from favoritism, bias or prejudice.”  Further, under the same standard, “a mediator shall conduct a mediation in an impartial manner and avoid conduct that gives the appearance of partiality.” 

Likewise, under the ABA Model Standards, “a mediator shall avoid a conflict of interest or the appearance of a conflict of interest during and after a mediation.” A conflict of interest can arise from involvement by the mediator with the subject matter of the dispute or from any relationship between the mediator and a mediation participant, whether past or present, personal or professional, that reasonably raises a question of the mediator’s impartiality.

The parties must also carefully consider whether the mediator is truly impartial or has any actual or potential conflicts of interest.  Under the ABA model Standards, a mediator must make a reasonable inquiry to determine whether there are any facts that a reasonable individual would consider likely to create a potential or actual conflict of interest for the mediator.  Mediators will generally disclose information regarding potential conflicts of interest, including disclosure of representation or relationships with either of the parties or their counsel in a prior dispute or professionally.  Indeed, under the ABA Model Standards, the mediator must “disclose, as soon as practicable, all actual and potential conflicts of interest that are reasonably known to the mediator and could reasonably be seen as raising a question about the mediator’s impartiality.”  After disclosure, if all parties agree, the mediator may proceed with the mediation. But “if a mediator’s conflict of interest might reasonably be viewed as undermining the integrity of the mediation, a mediator shall withdraw from or decline to proceed with the mediation regardless of the expressed desire or agreement of the parties to the contrary.” 

In addition to formal conflicts of interest, counsel should examine the mediator’s other informal or indirect associations with the parties or their counsel, such as potential conflicting roles of their professional or personal partners, their professional affiliations with counsel on bar association panels, or even social club memberships where they may have or may potentially encounter one of the parties or their counsel.  Such potential conflicts may be of interest in the selection process to ensure the neutrality of the mediator and the perception and actuality of the mediator’s impartiality.

Likewise, in considering the selection of the mediator, the parties and their counsel need to consider the possibility of implicit bias and potential cultural differences, particularly in cases involving parties from different countries.  In all events, counsel will want to recommend selecting a mediator with whom the client feels comfortable and believes is neutral, and the attorney may need to be attentive to client perceptions and sensitivities when it comes to potential cultural bias.

Does the Potential Mediator Have the Time and Commitment to Devote to the Mediation?

The mediator’s schedule and availability are also important factors.  A mediator should agree to mediate only when the mediator is prepared to commit the attention essential to an effective mediation and should only accept cases when they can satisfy the reasonable expectation of the parties concerning the timing of a mediation.  A celebrated mediator may carry a heavy schedule, particularly if the mediator is also a practicing attorney. Will the proposed mediator be able to select a prompt date for the pre-mediation conference and the mediation itself?  Will the mediator be available to pursue the mediation after the formal mediation conference to act as an intermediary, to coach the parties for a possible settlement, or to nail down an agreement in subsequent calls and conferences?  The mediator’s availability to discuss and exchange proposals after the formal mediation conference is an important factor in evaluating the mediator’s commitment to pursuing a successful settlement; the settlement may not come on the date of the mediation but only after further discussions pursued following the conference.

Costs and Fees

Finally, price always matters.  One of the disadvantages of selecting a mediator through a major service provider is the potential additional cost and fees to be paid to the organization.  Unless the contract or dispute clause requires the use of a particular service provider, the parties may be able to search the rosters and other lists of mediators and hire the mediator directly.  As for the fees charged by the mediator, these may be by the hour or for the mediation day, and the mediator may charge differently for study time and the conduct of the mediation conference.  The rates for different mediators can vary significantly and the rate the parties are willing to pay will, of course, vary depending on the amount of money at issue in the dispute.  It would be wrong, however, to mistake a mediator’s fees as a direct reflection of the quality of the mediator.  The fees listed by the mediator are a necessary factor in selecting a mediator, but by no means are they the only or even the most important one.

Generally, unless the governing contract requires otherwise, the parties will split the payment of the mediator’s fees evenly and each will be asked to make a deposit to cover the mediator’s study time and the preliminaries for scheduling and organizing the mediation.

Questions for the Potential Mediator?

While the parties can collect a host of information about a mediator online, depending on the applicable mediation rules, they may also want to interview the proposed mediators before selection.  As a noted mediator, Theo Cheng, has observed “two other methods worth noting are (1) sending out questionnaires or e-mail queries to potential mediators and (2) interviewing potential mediators.”  As Mr. Cheng has observed, “[p]articularly because ex parte contact and communications with mediators are generally permissible (unlike the case with an adjudicator like a judge or an arbitrator), it is surprising that these methods are not used more often.”   Indeed, as Mr. Cheng concludes “the personality of the mediator and his or her ability to build rapport and trust with the participants are important attributes that may well determine the course of the mediation process. Thus, it seems a missed opportunity that these two methods are not more widely used.”

Consider asking the potential mediator some of these questions:

1. Tell me about your background and expertise.
2. What kind of training have you had and when was it?
3. What is your mediation style?
4. What do you charge and are there any additional fees?
5. Do you have experience mediating a case like this?
6. How many cases have you mediated?
7. Are you on any court rosters?
8. Can you provide references?
9. How long is the process?
10. Can you mediate online?
11. Once the mediation ends, who drafts the agreement?

CASTAYBERT PLLC has extensive experience as an effective advocate for clients in commercial mediation and has experience with many different mediators.  The Firm works with its clients to select the right mediator for the type of matter at hand.  To see how CASTAYBERT PLLC can assist you in mediation, click here.