Mediation Strategy–Let The Other Side Choose The Mediator
May 28, 2020
As a savvy and experienced litigator, you likely have a short list of go-to mediators or a picture in mind of the type of mediator you would like to select to mediate your client’s case. Or perhaps you are less experienced and would welcome some counterintuitive advice. Why not let the other side choose the mediator for your next mediation?
The traditional approach is to unearth and weigh the qualifications of one or more mediator candidates. These qualifications typically include mediation skills and experience, subject matter expertise related to the dispute, a particular mediation style or approach, a measure of gravitas and the ability to engender the respect of the parties and build rapport, and the tenacity to push through potential moments of impasse. (Find more details on mediator qualifications in our Ultimate Guide to Choosing a Mediator.)
What if the most important mediator qualification is not included in the list above? Instead, the most important mediator qualification to you and your client may be the ability to engage and potentially persuade the other side.
Clearly, you would want to implement this advice with some care. An obviously biased mediator would lead to wasted mediation efforts. Conflicts of interest should be avoided.
Think of it this way: by giving up your power to choose the mediator you will be gaining tactical benefits during the mediation itself. If the other side chooses a mediator with a reputation of being against your side of the dispute, you should look for opportunities to leverage the concession you made in mediator selection.
If this mediator makes a proposal or suggestion that you like, you can lever this by pointing out to the opposition that they are unlikely to find a better result in court than they have right in front of them from their hand-selected mediator.
On the other hand, if this mediator moves the mediation in a direction you don’t like, you can work to discount this development by pointing to the orientation of the mediator.
If you give up your power to choose the mediator impose only a couple of conditions. Avoid actual conflicts and retain a veto right in case you flag some other potential issue with the other side’s recommended neutral. But, other than that, give it a try. Give up your power to choose.
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