The Five Keys to Choosing a Mediator for Your Case

You know that over 95% of cases settle short of trial, and litigation costs and delay are an issue with your client.   What’s more, your judge, or the court rules, are pushing you into mediation.   You believe a good mediator might buffer you from your client’s upset when you ask tough questions about the weaknesses of her case. 
So, how do you choose the right mediator for your case? Here are five keys to making an appropriate selection to net the best outcome for your client:
  1. First, determine what kind of mediator style you need: facilitative or evaluative.
    Do you need a facilitator to guide the parties to their own resolution?  Or would you prefer an evaluator whose view of the outcome will determine settlement value for you?  The Michigan Court Rules advocate a facilitative model–and with good reason–you know your case best and your client is most likely to be satisfied with a resolution she helped craft, not one “suggested” by your mediator.  Perhaps you need a mediator who is comfortable employing both styles, teasing out the parties’ underlying interests for them and then guiding them to final resolution when knees begin to buckle.
  2. Consider whom you represent, what kind of case you have, and who’s on the other side. You may want a mediator who has litigated a case like yours but from your adversary’s side of the courtroom.  A mediator whose career bias works against yours brings instant credibility in dealing with your adversary in mediation.
  3. Take into account your client’s personality.
    Do you need a tough mediator to lean on a hardened claims adjuster or seasoned business person or a mediator with a lighter touch to make a litigation neophyte feel at ease with the mediation process?  Be realistic about how much client control you have.  Is it better for you to deliver bad news to your client about the weaknesses of your case or should the mediator be the messenger so you can save face?
  4. Your adversary’s style should factor into the mediator selection as well.
    A skilled mediator knows how to stand up to an obnoxious litigant and when to employ negotiation ju jitsu to persuade.
  5. How important is specialization?  Do you need a mediator who has done nothing but litigate or mediate your type of case?  Or is process expertise paramount?   Special expertise may help persuade your client if she shares or respects the same background.  Perhaps some combination of subject matter expertise and process skill would be ideal, but you may have to do some searching to find it.
Having answered these questions, you are ready to search for your mediator.  Rely on word of mouth referrals, credentials and references. Look at a mediator’s website, resume and bio. Have a conversation and determine if you can comfortably put your client in the same room as the mediator. Court rosters provide a starting point, too.  They assure minimum training in the field and a commitment to continuing mediator training.  ADR provider groups like Professional Resolution Experts of Michigan, Inc. (PREMi) are another source of skilled mediators with diverse substantive backgrounds and mediation training.
Your search is likely to find several mediator candidates.  Interview them all, if not in person, then on the phone.  Use these Five Keys to Choosing a Mediator and trust your instincts as to whether your selection is the right fit. Remember, also, that the best mediator for one case may not be appropriate for the next case.