August 16, 2011 Articles

Ten Things Lawyers Love/Hate about Mediators

By Jobi Halper

While parties agree that mediation is a valuable tool that saves the courts and parties substantial money and time, that does not mean all mediators are created equal. Mediators have varying degrees of skill and vast differences in style. Many states have no training requirements before mediators may practice and do not monitor continuing education for mediators. Even states requiring minimum training requirements—to participate on court panels for example—may not require continuing education to help a mediator expand the tools to resolve litigation. Moreover, absent from a mediator's practice is any "cross-pollination," or the ability of one mediator to observe the style used by another mediator to calibrate the effectiveness of a tool in certain situations. Attorneys often collaborate with other attorneys in the same firm or with other colleagues, or have the opportunity to observe opposing counsel's style and skills. This allows attorneys to examine, gauge, and measure other skills and styles for use in practice. Finally, mediators are rarely given the opportunity to understand the preferences of style of the attorneys who bring their cases to mediation.

Similarly, attorneys rarely have the opportunity to discuss among themselves the style and tools used by various mediators to scrutinize the best ways to work on particular cases or with particular mediators. Therefore, examination of mediation tools and styles that either enhance or obfuscate the mediation process further the process to the satisfaction of parties, mediators, and the courts.

To prepare this article, various attorneys and mediators were surveyed. Below are 10 important issues raised by attorneys, which both mediators and attorneys should consider during the mediation process.

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