Practical Matters: What makes a good mediator

By David M. Heilmann
Clausen Miller

”Look, you two need to come together, express your emotions, defuse the anger, and work on your ongoing relationship.”

Sounds like Dr. Phil, doesn’t it? Actually, these are a few of the reasons why, according to the American Bar Association, you mediate a case.

Expressing our emotions.

For some reason, I can’t picture myself lying on a couch as former Judge Don O’Connell asks, ”Tell me how you feel today. Are you angry at opposing counsel? Do you think he’s a bitter little man?”

And as for the ongoing relationship part, well, that’s out.

I’ll say, ”hi,” in the elevator and be friendly, but don’t expect dinner.

The ABA is not alone. There are fairly standard definitions of what the mediation process is to entail. In defining the role of the mediator, JAMS notes on its website that ”the mediator does not decide what is ‘fair’ or ‘right,’ does not assess blame nor render an opinion on the merits or chances of success if the case were litigated. Rather, the mediator acts as a catalyst between opposing interests, attempting to bring them together by defining issues and eliminating obstacles to communication, while moderating and guiding the process to avoid confrontation and ill will.”

Is that our expectation of the mediation process?

Is it just someone to facilitate communication? Or is it someone who has knowledge of the legal issues and will give an opinion on where he or she believes the weight of the evidences lies?

The ABA leans toward the former. ”Mediation doesn’t rely on specific points of law. People solve their own problems by looking to the future instead of finding fault or blame. In contrast, the courts make judgments based upon the law.”

If that’s the case, then why do we see so many former judges as mediators? The courts make rulings based upon the law.

Further, a judge is elected or appointed primarily because of his or her legal experience, not expertise in counseling, anger management skills, or the ability to promote loving and harmonious relationships.

As a matter of fact, one or two judges have been known to be downright crabby themselves.

Judge Gomberg yelled at me 20 years ago and I’m still not over it. But I digress.

The traditional definitions of mediation may not comport with what we, in practice, want and expect from a mediator. Many attorneys select mediators, including former judges, precisely because of their knowledge of the law and their ability to offer some legal insight into the issues.

Peter McCabe, a senior partner at Winston and Strawn, offered these thoughts.

”In selecting a mediator, I look for (1) a lawyer with actual experience trying cases involving the subject matter of the litigation; (2) a trial judge who has had many years of experience trying cases involving the subject matter of the litigation; or (3) a lawyer or layperson with substantial knowledge and experience of the particular industry in which the litigants find themselves.”

Key was the knowledge and experience with the subject matter. Why?

”I want someone who will have credibility while making the case to either my opponent or his client — or perhaps to my own client — that a particular settlement makes good business and litigation sense. If the mediator doesn’t fall into one of these categories, then I generally find that the mediation will be doomed from the start.”

Veteran trial attorney Robert Heyne of Tressler, Soderstrom, Maloney & Priess had similar sentiments. ”A mediator has to be prepared for discussions of the fact issues and the law. Then, through meetings with the parties, there comes a narrowing of the factual and legal issues and that suggests the value of the case.”

Again, more than facilitating communication, the preferred effort from the mediator was working on narrowing the legal issues.

One of my partners, Scott Ritchie, agreed.

”Every mediator should have a good command of the relevant law, be willing to devote the time necessary to learn the important facts creating the controversy, and then objectively explain the relative strengths and weaknesses of the merits of the case to each of the parties to direct the parties to resolution.”

Many mediators and attorneys will tell you that the most successful mediations are those where it is the attorneys who have worked in advance with their clients to put emotions aside and to have realistic expectations from the process.

”There is some point beyond which a client would not accept settlement, so the lawyers must help the client find that point of indifference and commit in advance to accepting any offer that is superior to that point or position, offered Robert Knuepfer, a senior partner at Baker & McKenzie.

”Going for everything inevitably leads to failure. Mediation is compromise, not a winner-take-all exercise.”

Unless of course you’re really, really angry and need that time on the mediation couch.