Some advocates act as if arbitrators and mediators are fungible commodities. Were this true, we would not hear so many horror stories of “bad” neutrals: arbitrators who fall asleep during the hearing or mediators who give up at the first sign of impasse. Advocates can ensure that their clients see only the best neutrals by having a set of selection guidelines in place.
Selecting the best arbitrator. What are the criteria that define a good arbitrator? They include more than simply being judgmental. Your arbitrator should be efficient and effective. He or she should be able to manage the arbitration process, evidence, counsel, and the parties. An arbitrator should be able both to “run the room” during the hearing and craft a timely award that is not only well reasoned but also invulnerable to challenge.
Interview the administrator. Contact an arbitration administrator to get the names of counsel who have used prospective arbitrators. Apply the criteria suggested above. Do the arbitrators read the pleadings? Are they able to timely rule on motions? Do they entertain dispositive motions? Do they control costs or simply acquiesce to parties’ demands for endless discovery? Do they flaunt their perceived power by pushing parties around? Did they issue an award within the time allotted?
Interview the arbitrator. Ex parte discussions with an arbitrator are ill-advised. However, courts have generally found that preappointment arbitrator interviews are permissible, so long as they are generally limited to subject matter areas that I like to characterize with the acronym I PROSAIC: independence; prior experience with parties or counsel; relationships that may be relevant; other matters that may be relevant; subject matter expertise; availability to hear and rule on a timely basis; impartiality; and capability of handling a complex matter. When you conduct the interview, do so in a telephonic or business, rather than social, setting.
Despite your efforts to find the best neutral, not all parties may agree with an arbitrator’s final award. At a minimum, your arbitrator should provide your client with an award that explains the procedural history, the evidentiary findings, and a clear understanding of the reasoning that formed the basis for his or her decision.
Selecting the best mediator. There are several sources for professional or volunteer mediators. They include large organizations such as JAMS and the American Arbitration Association (AAA), web-based rosters, and court programs with lists of local mediators. I often ask advocates about their mediator selection process. Most attorneys report that they choose mediators on the basis of reputation. They look for mediators with the most experience and the highest settlement rates. Other advocates simply accept the suggestion of opposing counsel, reasoning that such a mediator is assured credibility with the other side. Invariably, advocates ask whether there are other, more objective criteria they could employ to ensure that their clients and cases are treated with the professionalism they deserve.
Expertise: subject matter vs. mediation skills. Many parties seek a mediator with expertise in the subject matter of the dispute. However, there may be more value in a mediator who possesses highly developed mediation skills. This is a balance that each advocate and client should consider carefully. Mediation skills require years of experience to develop. A skilled mediator is usually a “quick study” of subject matter who is able to learn enough from advocates to be able to understand the nomenclature and converse in the subject matter. Many advocates agree that, although subject matter expertise may not be essential for a mediator, some familiarity with the issues tends to lend efficiency to the process. On the other hand, too much subject matter expertise is often accompanied by subject matter bias.
References. Many advocates ask potential mediators for a list of references. The mediator typically provides names of counsel for whom the mediation process worked well and who will be most likely to provide positive references. An alternative is to ask the mediator for the names of the counsel who participated in the mediator’s last five mediations. You will learn not only whether some counsel had negative experiences with the mediator, but also, by looking at the length of time between cases, be able to determine how active the mediator’s practice really is. A competent, full-time mediator may be mediating three to four cases a week.
Philosophy. Does your prospective mediator believe that the “playing field” needs to be leveled by sharing information that one party might otherwise prefer be kept confidential, such as alternative case theories or case law that may help one party? Does your mediator believe that it is constructive to share his or her opinion? Does he or she understand what happens after that opinion has been shared? Has your mediator been trained in transformative mediation, a process that attempts to strengthen parties’ relationships, or in facilitative mediation, wherein the mediator serves as a catalyst to a negotiation process?
Credibility. A mediator’s ability to quickly establish reliability with a wide variety of parties and counsel is critical. Experience and early research seem to indicate that the only reliable preliminary indicator of the ultimate success of mediation is the parties’ impression early in the mediation process as to the mediator’s competence. Does prior counsel report that the mediator was able to establish credibility with the parties early in the process? Was the mediator able to handle difficult clients? Was the mediator able to help repair eroded attorney-client relationships? Although many mediators take credit for resolving cases, mediators don’t settle cases; parties do. If your prospective mediator is promoting his or her settlement rate, might he or she not have established a personal interest in the outcome of your matter?
Confidentiality. Does your mediator promise that “everything in mediation is confidential”? If so, beware! Generally, only what is created during mediation is protected. Parties may not be quoted as to what they say in mediation and have that quote used in a subsequent legal forum. Notes may be treated the same as quotes. However, mediators cannot protect parties from the use of information learned during the mediation process. Documents do not become confidential simply by virtue of their use in mediation.
What will your mediator do if subpoenaed by your client, your client’s attorney, or the other side? Will the mediator breach confidentiality when he or she feels a moral or ethical obligation to do so? Will he or she reveal to you in advance what those thresholds are? Will the mediator furnish you with all the ethical codes to which he or she subscribes? What will the mediator do when his or her ethical code and ethical obligations as an attorney conflict?
Training. Because there are few official standards for mediators, a mediator may have been trained for as little as two days. A course of even five days may not be sufficient to develop effective mediation skills. When interviewing a professional mediator, it may be useful to ask not only about the training he or she received but how much training he or she conducts. Is the mediator an adjunct at the local law school? The challenge of teaching is often a richer learning experience than training received.
Cost. What are the mediator’s policies for cancellation? What if only one party cancels? What if the mediator terminates mediation—will the parties still pay? Does the mediator offer daily as well as hourly rates? Does the mediator charge for preparation, travel, or paralegal time?
Conclusion. Choosing the neutral is too important to leave to opposing counsel. Use of meaningful selection criteria will help ensure that your client receives due process, even in an alternative dispute resolution process.
ABA Tort Trial and Insurance Practice Section
This article is an abridged and edited version of one that originally appeared on page 50 of The Brief, Winter 2014 (43:2).
For more information or to obtain a copy of the periodical in which the full article appears, please call the ABA Service Center at 800/285-2221.
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