Mutual consent and court ordered mediation is becoming more prevalent as a means to resolve matters in conflict as litigation costs escalate and court calendars suffer from over-crowding, greater demand and budgetary constraints. While mediation is a valuable forum to access for all parties, there are specific areas which are often overlooked in preparing a matter for presentation and discussion in this type of forum.
Selection of Your Mediator
What has escaped many litigators and companies in the artful practice of mediation is a full and comprehensive examination of the mediator involved in the process. Some of the most prominent aspects that should be examined with regard to choosing a mediator are as follows:
Background of the Mediator
1. Does the mediator have sufficient or significant exposure or knowledge of the area or matter of the litigation?
2. Does the mediator have an employment, education or cultural bias which prejudices or taints his or her viewpoint to either of the parties?
Character Aspects of the Mediator
1. Is the Mediator passive or aggressive in his or her approach to mediation;
2. Does the Mediator participate in the respective factual patterns of the parties or in the process of mediation?
Key Element for Choosing a Mediator
Litigation history has shown lawyers and their clients that the best mediators involve themselves in the process of bringing resolution of the parties through the parties. A key mistake often made by mediators is advancement of their personal knowledge to educate the parties during mutual or separate sessions. For example, for a mediator to advance their personal experience or knowledge of "adjustment of damages" in a subrogation case can often tip either party to ideas or legal concepts which were not previously part of their reasoning towards resolution. Hence, a mediator who introduces ideas, knowledge or ideas to either party can otherwise distort the process of mediation which ultimately is designed for the parties to facilitate through their own devices, a solution to their conflict.
In looking towards mediation as an integral part of the litigation process, it is vital for the participants to fully examine the "third party neutral" to insure that the process is fully respected for its aims and ideals.