The following paper, “Choosing The Right Mediator” , was presented by Linda McPharlin at the 2003 Annual Meeting of the State Bar’s Labor & Employment Law Section. It was published, as well, in the Labor and Employment Law Quarterly.
CHOOSING THE RIGHT MEDIATOR
by
Linda Hendrix McPharlin
As mediation becomes more common in employment litigation, the process of selecting a mediator has itself become fairly routinized. Litigators propose their own or a colleague’s favorite mediator, hassle a bit with opposing counsel to avoid a mediator seen as pro-employee or pro-employer, then – selection mission accomplished – set the mediation date. The underlying assumption appears to be that a “good” mediator is “good” for all purposes: one size fits all.
Advocates might find it beneficial to question that assumption before committing thousands of dollars in mediator fees and attorney/client time to mediation. Investigation of the mediator’s style and background, by talking with colleagues and interviewing the mediators themselves, can avoid an expensive misstep. If nothing else, such pre-mediation work will allow attorneys to better prepare themselves and their clients for the mediation.
Consider first the mediator “types”
If asked, mediators most often describe themselves as neutrals who assist parties in reaching their own resolution. But frequent users of mediation services see wide variations on this theme. Litigants talk of mediators whose “assistance” ranges from passively repeating settlement demands and offers to actively pressuring participants to settle. Styles, officially characterized as facilitative or evaluative, may in practice range from the sympathetic therapist (how devastated you must have been) to the omniscient dictator (I guarantee this case will settle for $____ by 3:00 today).
While some mediators can be adept at adapting their style to the case at hand, basic personality characteristics are not subject to much variation. Better to know ahead of time the kind of person you are hiring.
Matching mediator type to participants
Choosing the type of mediator with whom you or your client is most comfortable is an obvious approach. The Type A, cut-to-the-chase business client may not tolerate a mild-mannered mediator who doesn’t even get warmed up for several hours. The highly emotional, wronged plaintiff might dissolve with an authoritative type. However, opting for the mediator best suited to your opponent’s needs can be the better strategy. For example:
- You prefer facilitative mediation, but are certain that only substantial pressure will sway a recalcitrant opponent. A strong, evaluative mediator is the tactical choice.
- A mediator whose legal practice favors the opponent’s side (e.g., an insurance defense lawyer or a plaintiff’s P.I. lawyer) can more easily gain the confidence of the opponent. This may be more productive than a mediator in whom you have confidence.
- Your client wants quick resolution, but the other side needs a full airing of the case before they will ever come close to settlement. A mediator who works well with the opponent’s approach may be essential to success.
[Note: the type of mediator you think the opponent needs is not necessarily the type mediator the opponent is proposing.]
Matching the mediator to the case
Advocates whose cases have strong emotional appeal may lean toward a patient, sympathetic mediator, employment law knowledge optional. Defendants relying on legal defenses will often want an evaluative mediator--a judge or employment law specialist--who understands the law and can convincingly communicate to the other side. A plaintiff’s attorney whose client does not acknowledge the legal weaknesses in their case may want such a mediator, as well. Complex or high-profile cases with several parties and/or very high potential damages may justify the expense of a “star” mediator (recognized by his/her colossal price tag and inclusion on everyone’s list of mediators).
Consider the following situations:
1. The Case: plaintiff’s attorney with a difficult-to-prove age discrimination case, open to an early, reasonable settlement, with a plaintiff who is not ready to “let go” and wants his story heard.
The Mediator: a facilitative mediator, with strong mediation and mediation training experience. A hard-pushing mediator could be counterproductive, and an evaluative mediator may not be needed, as the plaintiff’s attorney is already “there.”
Add to this case scenario: that plaintiff is convinced his case is worth far more than the law and facts justify. Facilitation skill and patience would still be desirable in the mediator, along with employment law expertise.
2. The Case: a large company with solid harassment policies and a Farragher defense, planning a summary judgment motion, represented at the mediation by an executive with no appreciation of the jury appeal of plaintiff’s case.
The Mediator: an experienced, sexual harassment trial lawyer or a former judge acting in evaluative mode. Their authority and experience can help persuade the defendant that legal defenses may not carry the day. If damages are potentially high, this may be the case for the “star” mediator, with whom the successful executive might feel an affinity.
3. The Case: wrongful termination of a manager, based on breach of an employment contract for cause; both counsel have a fairly realistic take on the case as damages are contractual and fairly calculable; the manager is in no mood to defend her performance in ‘public’.
The Mediator : a deal maker. Lengthy, sensitive airing of facts and issues is not needed; a mediator experienced in Wednesday-before-trial settlement conferences, who can make a quick jump to dollars, might be just the thing here.
The deal-making style could be fatal, though, if either side relies heavily on legal analysis found in an extensive mediation brief. They won’t want to hear at the start of the first private caucus–from a mediator who has barely skimmed the brief: “So, what’s your number to settle?” And a passive shuttling back and forth of offers and demands, without input or opinion by the mediator, could drive both sides crazy.
4. The Case: a hostile environment, ‘he said/she said’ case, with the harassment limited to joke telling and innuendo. The defense attorney thinks any settlement should be a token amount; plaintiff’s attorney thinks the case is worth six figures, but is also trying to keep the client from expecting a windfall.
The Mediator: The last thing needed is pressure from a star mediator–who has never yet seen a case worth less than millions (or why would the parties be paying such a high price for mediation?). Nobody gains if the mediator starts talking bigger numbers than would ever be feasible. Look for a mediator with lots of experience who will be credible to both sides. This will be a tough case.
Learning About the Mediator
A mediator’s curriculum vita is a good starting point, but a more realistic take on a mediator’s style can come from colleagues. That the mediator settled their cases is not overly helpful–the parties could have been poised for settlement no matter what–but a frank assessment of the mediator’s personality type, familiarity with employment law, attentiveness to facts and law, etc. can be valuable input.
Also helpful is a direct interview of the mediator. Some self-serving answers will likely turn up, as many mediators like to believe they can handle any kind of case or participant. Nonetheless, the interview can be useful, not only for determining the mediator’s suitability for the case at hand, but also in providing a preview of the mediation day. Some areas to cover:
Level of experience
What percentage of the mediator’s practice is mediation? What percentage litigation?
[a mediator with scant litigation experience may lack credibility, but have psychological skills gained in a longtime mediation practice]
How many cases has the mediator tried? How many years as a practicing trial attorney?
[experienced trial attorneys can be persuasive/realistic in evaluation of the case, but may not be the personality types to hear out long stories and soothe ruffled feathers]
How many cases has the mediator mediated? How many years mediating?
[It is a popular field; newcomers may lack needed skills]
Kind of experience
What type case does the mediator normally mediate?
[familiarity with employment law, if not in-depth understanding, is useful, although a mediator working in many areas may have developed skills that do not focus on legal issues]
In what field did/does the mediator practice? Insurance defense or plaintiff’s PI? Small practice or large business firm? Management or labor?
[keep in mind the background most appealing to your opponent, as well]
If a former judge, how long on the bench? Criminal or civil? What experience with settlement while on the bench? What area of practice as an attorney?
Style
Evaluative, facilitative, a blend, other?
How many hours does the mediator normally spend in cases mediated to settlement?
[consider if you and/or your clients have the patience for a marathon, or for hours alone while the mediator talks to the other side]
What mediation structure does the mediator prefer (e.g., long/short joint session before private caucuses, or all private / all joint sessions; meetings with clients alone or attorneys alone)?
[the mediator may say that the structure is up to the litigants, but the mediator’s usual mode is likely that in which he/she works best]
How does the mediator resolve impasses? (E.g., with use of a mediator’s number or assessment of the value of the case? By quick adjournment to try later?)
Does the mediator tell participants, jointly or privately, his/her opinion of the merits of the case or of the settlement numbers being discussed?
[some litigators can’t bear not getting a mediator’s ‘real’ opinion–privately]
With diligence, you can find a mediator with the skills and personality best suited for your case. You can avoid surprises, end up with a mediator you won’t mind spending the day with and have a better chance at settling the case.