Should You Defer to the Other Side’s Proposed Selection of a Mediator?

A quick “Google” on the topic of “how to select a mediator” will provide a bajillion articles…a good sample article here

Academics in the study of conflict communications and management might argue that the mediator need not understand the subject matter of the dispute (e.g., divorce, intellectual property, etc.), but can resolve any dispute by helping the parties focus on what the problem is and potential solutions.  There is truth in this stance.

Poll attorneys and many (if not most) will say that they want the mediator to know “the law” of the particular dispute.  If it is a divorce, the attorneys do not want a criminal defense attorney to serve as the mediator.  If it is a securities fraud matter, the attorneys do not want a family therapist to mediate the matter.  There is truth in this stance.

Once parties decide that they will mediate their dispute, too often they get bogged down in selecting who will mediate.  In getting knee deep in this “new dispute” of who will be the mediator, the battle of wills often is not about whether the mediator knows the subject matter or has the ability to manage conflict communications.  So, what is the right answer in this I want Mediator X; you want Mediator Y?

A heavily seasoned attorney for a global corporation spoke to the Dispute Resolution Section of the Atlanta Bar and said, off-handedly, that he didn’t really care (beyond the basics) who the mediator was and usually deferred to the other side’s desired mediator.  Why?  Two of the reasons he gave showed that he was a confident negotiator who really understood how mediation worked.

The first reason for deferring to the other side’s choice of mediators was that he could use any (any) mediator to do what needed to be done.  As a mediator, I think this statement is brilliant.  If a mediator is truly a neutral party and you are truly prepared to negotiate, you can and will use the mediator to help work with your client, to share messages with the other side, and to retrieve information from the other side, as needed.  Simply put, effectively using a mediator meant that he understood just how flexible the mediation process is and how creatively he could use the mediator (when you plan ahead or have significant experience negotiating) to get the settlement done.  Deal closed!

The second reason for deferring to the other side’s choice of mediators was that, since he knew how to use any mediator, he gained (or, perhaps, didn’t lose) a psychological advantage, if you will.  He noted that if the other side “didn’t get their way” on who the mediator was, the other party may arrive at mediation more emotionally charged than they otherwise would have been because they suffered a “loss,” even before the mediation session started.  The other party may also believe that the mediator is or will be more biased towards the other side, an opinion that may provoke the other side to be more aggressive, emotionally reactive, and ready to give up on negotiations more quickly because the odds were stacked against them from the outset.  

The bottom line is that in selecting a mediator, a factor that is often not discussed is the value of “giving in” to the other side on who the mediator will be.  So long as the mediator is worth his or her salt, deferring to the selection of the other side may be a strategic move towards setting the mediation up for success rather than failure.

 

 

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