Choosing a Mediator
by Rob L. Wiley
Most civil and family cases in Texas at some point go to mediation on their journey to trial or settlement. Either the parties agree on their own to mediate or the court orders it. In the large counties, and many smaller ones, state trial judges incorporate an alternative dispute resolution requirement, usually mediation, into scheduling orders the parties and their lawyers must follow before trial. Few courts will even schedule a trial without the case having been mediated.
The increasing popularity of mediation has encouraged many lawyers, former judges, and other individuals to provide mediation services. Because we’ve seen the mediation practice as advocates for civil and family litigants and as a mediator, at Stewart & Wiley, we have some definite ideas about what’s important in choosing a mediator. While we certainly hope you’ll consider us, we pass along over 29 years of wisdom in litigating and settling cases with the hope parties involved in disputes will make wiser choices about who they ask to mediate their matters.
It’s important to remember, first, that you’re choosing a mediator, not an arbitrator. Your mediator isn’t going to decide an outcome. He or she doesn’t have that power. Since the mediator won’t decide the case, the mediator’s biases don’t matter as much as with an arbitrator who literally holds the fate of the parties in their hands. Notice we didn’t say those biases are unimportant. A defense or plaintiff-oriented mediator can tilt the playing field, making the case harder to settle or, promote settlement terms that are not in the best interest of one party or the other.
Having said that, however, since the mediator does not render a decision, we’ve found it less important to spend weeks haggling over whether this or that mediator likes plaintiffs or defendants (or men or women in family cases). He or she isn’t forcing any party to settle. The option NOT to settle always remains with the parties.
We believe that being a mediator first and foremost requires fairness and neutrality. Mediators need to work hard at settling cases, but they shouldn’t get invested in the merits of the dispute to the point they care about the factual issues or legal principles involved. As I tell the lawyers and parties at the beginning of my mediations, “I don’t have a dog in this fight. While I care very much about helping you settle while you’re here, tonight I’m going to put my feet up and watch a baseball game.”
If fairness and neutrality mark the starting points for choosing a mediator, what else matters? Consider:
*Trial and litigation experience – if a dispute has already gone to litigation or appears likely to, a mediator who knows little or nothing about what happens in court rooms presents a problem. Evaluating cases requires an understanding of what the parties are up against if they don’t settle.
*Local knowledge – a good mediator doesn’t have to know all the idiosyncrasies of every judge in the county (unlikely in the big counties), but it helps to know the general judicial tendencies in the neighborhood, the likely make up of juries, and the area’s political, economic, and social orientation. In other words, mediators who know something about how much juries award in car wreck cases or the propensity of various judges to grant summary judgment motions in contract cases offer an advantage over mediators flying blind about such things.
*Empathy – Mediators who understand interest-based bargaining know that to settle cases they have to do more than carry offers back and forth between the parties. That means empathizing with the litigants, understating what drives them, and showing a genuine interest in getting the matter resolved. The mediator knows, or should know, the settlement the parties reach themselves usually serves both better than the judgment one of them might get from the court.
*A willingness to push each side – most disputes have two sides and good mediators know that. Though one side may have factual or legal advantages, hardly any party brings a perfect, airtight case. A good mediator identifies the strengths and flaws in each side’s case and makes sure both understand what they are. He or she pushes both sides to recognize the risks they face, including the possibility of an irrational result in court that nobody foresaw. Looking for a mediator who’ll reinforce your notions about how good a case you have asks for trouble.
There are more traits to look for in a mediator, but these represent a good start. We strive to meet these goals. Give us a chance to show you how we put these ideas into practice. Call us at 281/367-8007.