***Think about what you want. Primarily, negotiation assistance, of course. Do you also want a neutral evaluation of your case and an informed guess as to probable outcome (i.e., an evaluative mediator)? Are there cultural issues (ethnic, religious, foreign-language, etc.) that would make the parties more comfortable with a mediator familiar with their culture? Do any of the parties have a disability that requires sensitivity to that specific disability or a special accommodation?
***Compile a short list of possible mediators. Seek referrals from people you trust. Think of mediators who you have heard about, met or seen speak . The major providers of mediators—in New York City it is the American Arbitration Association (AAA) and JAMS—post profiles online. Court rosters also have profiles on line which you can use even for non-court-ordered mediation.
***Arrange for a phone call. Ask about the mediator’s experience and outlook. Explain a little (very little) about the case and see if she has handled any similar ones. Get a feel for his approach and personality.
***Don’t assume you have no say if you are assigned the mediator (in court and other panel mediation programs). Even then you may be able to influence the selection. Ask for the kind of experience you want (“It would really help if the mediator has worked on construction cases” or a particular person “A colleague had such a good experience with Suzy Doe, I wonder if she is available”). The people making assignments often listen.
***What should you do if your adversary suggests someone she has used before? Instinct may be to say no, but if the adversary trusts this person, he will be more likely to listen to any assessments she makes about the weaknesses of the case, etc. If all else checks out, you have an advantage if your opponent likes the mediator.
***How important is substantive experience? It is often overrated—generally go for intelligence, broad experience, style and personality. You may want to make an exception to this if (1) the facts and legal precepts are unusually complex or arcane (2) you (or your adversary) will be more comfortable with someone who really knows the overseas franchise world or (3) you want a neutral evaluation of what a court or arbitration panel is likely to do.
***Finally, after checking out a candidate, trust your instincts. It is key that you have confidence in and feel comfortable with the mediator.
First published in Oregon Mediation Association Newsletter, Spring 2009.The other day I was having breakfast and was about to open the orange juice bottle and noticed the instructions on the...By Grace Eagle Reed