Pick the Right Mediator and Agree on the Role of the Mediator

Mediation Minute

Help your Mediator to help you and your client

The relationship between the mediator and the parties must be clearly defined and be based in trust. Before a mediator is selected to host mediation, the parties should agree on what type of mediation they would like to engage in and who is the best mediator for that goal. Does the mediator need certain skills or knowledge to help resolve the dispute?

Mediators can serve many roles; they can be evaluative, facilitate discussion, carry proposals back and forth, and demonstrate the strengths and weaknesses of your case. The attorneys for both parties should agree on which roles the mediator should serve and communicate their wishes to the mediator.

Before the mediation begins, an attorney should make it clear to the mediator what they expect from the mediator. This includes making it clear what information should be provided to the other side and what information should be held in confidence: including facts, arguments, theories, and settlement budgets.

A mediator cannot properly perform their role without all the facts and open communication. If you are proposing a large settlement or a small settlement, you should be ready to articulate on what objective grounds you feel the settlement is appropriate so that your mediator can explain it to the other party.

It is helpful to the mediator to receive a mediation statement that includes facts, the law and pertinent documents and analysis.  Failing to do this may cause delay at the mediation while the mediator is getting the facts from the parties.

If the mediator does not understand your position or is unclear about their role, bad things can happen .  This can include antagonizing the other party, providing wrong information or saying “I thought you wanted to make that offer,”  when in fact, you did not.  Be precise in your communication with the mediator.