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  • July 08, 2022

    Mediators: Why Are You Chosen to Mediate a Case?

    How often do lawyers evaluate why they are being chosen as a mediator for a particular case? Brent Smith discusses the factors that parties and their attorneys consider when choosing a mediator.

    Brent P. Smith

    confident professional

    While mediators tend to focus on how we conduct the mediation, we tend to devote little attention as to why a particular mediator was selected by the parties.

    What are the factors parties consider when deciding upon the mediator for their case?

    Trust You've Earned from Prior Contact

    All parties want someone they can trust. The top factor that produces that trust is a satisfactory prior experience with a mediator. There is no substitute as that trust has been earned. A close second is having a positive reputation that meets the parties’ and attorneys’ needs.

    Your Responses in the Interview

    Even with some knowledge of positive reputation, mediators are increasingly being asked by attorneys and unrepresented parties to participate in what is actually a job interview.

    Brent P. Smith Brent P. Smith, U.W. 1978, is the managing partner at Johns, Flaherty and Collins, in La Crosse, where he practices in civil litigation, municipal law, and alternative dispute resolution.

    As mediators, we should not be offended or taken aback when we are asked to describe our credentials. We simply need to be ready when we receive these often unscheduled calls to describe our mediation background, practice, and techniques. If possible, we need to educate and train staff to have knowledge for these calls as well.

    Generally, clients want to know that the mediator has the right background for the case, including substantive knowledge and experience in the area. They also want someone whose style and process will work for them. As mediation has become mainstream, clients often want mediators with knowledge of current laws relating to their case whether divorce, construction, employment, business, special education, elder law and end-of-life issues, to name only a few.

    Your Knowledge and Experience

    Regardless of the arguments about facilitative versus evaluative, some attorneys and clients are looking for someone with substantive experience and expertise (e.g., personal injury and business disputes). They want someone who has tried cases before judges and juries in their geographic area so they can give the parties guidance on potential trial outcomes or weigh in with options (e.g., a “mediator proposal”).

    Do you as mediator feel qualified to deal with the legal issues in a case where experience in a specific practice of law is mandatory? If not, consider asking another mediator if you could sit in or even co-mediate with them.

    Also, prepare for when a potential client wants references – make sure that you ask for those well in advance (letting them know it is completely optional). Confirm that acceptance in writing.

    Your Mediation Style

    Even with someone more evaluative, clients still want to be heard by someone who is empathetic and patient.

    An interview is also the mediator’s chance to demonstrate that style by asking more questions about the client and their case, rather than spending most of the call describing their expertise. Mediators can avoid dominating the call by being prepared to succinctly summarize their own approach in a couple of minutes. That is, be prepared to answer the question why they should choose you over any other mediator?

    Your Mediation Process

    Mediators should be prepared to describe their process in two minutes or less. From a bird’s eye view, how does it work? Is there a background process? What documents or checklists are required? Will there be individual calls before the sessions, especially with multiple parties?

    How long do sessions take? How many session are there? How do the mediator handle confidentiality? Are some discussions not confidential? If so, what are they and why?

    How are fees handled? Some firms require payment prior to the session, others bill afterward. Some are on fixed-fee schedules and others are by the hour.

    Are agreements drafted in-session or out of the session? The mediator should be aware of how hard they push versus the client’s right to self-determination – a gray line if there ever was one.

    Be Ready

    Parties to litigation have many mediators to choose from when contemplating alternative dispute resolution. It is not only the lawyers who choose the mediators, but their clients as well as the unrepresented parties who are involved in the decision to select a mediator.

    The lawyer, the client, and an unrepresented party often want this information before making this very critical decision on who should mediate the case.

    As mediators, we should be ready to provide this information to better assist parties in making an informed choice.

    This article was originally published on the State Bar of Wisconsin’s Dispute Resolution Blog. Visit the State Bar sections or the Dispute Resolution Section web pages to learn more about the benefits of section membership.

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    Dispute Resolution Section Blog is published by the State Bar of Wisconsin; blog posts are written by section members. To contribute to this blog, contact Lisa Derr and review Author Submission Guidelines. Learn more about the Dispute Resolution Section or become a member.

    Disclaimer: Views presented in blog posts are those of the blog post authors, not necessarily those of the Section or the State Bar of Wisconsin. Due to the rapidly changing nature of law and our reliance on information provided by outside sources, the State Bar of Wisconsin makes no warranty or guarantee concerning the accuracy or completeness of this content.

    © 2023 State Bar of Wisconsin, P.O. Box 7158, Madison, WI 53707-7158.

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