December 21, 2012 Articles

Choosing the Right Mediator

By Bruce A. Rubin

I recently represented a client in two separate mediations of the very same problem but with two mediators whose styles were different. The first time, we did not reach an agreement—even though our mediator was a former judge with a well-deserved reputation as a successful mediator. The second time, we succeeded. In the second mediation, the clients, the lawyers, the mediator, and a subject-matter expert hired to help the mediator spent two days in a work session to solve the disputes.

This experience reminded me that understanding mediation theory is more than an academic exercise. Knowing it leads to successful solutions. In Young Lawyers: Selecting the Right Mediator (Alternative Dispute Resolution Committee, ABA, Section of Litigation, vol. 15, no. 2 (2011)), P. Jean Baker explains that mediation is not a one-sized process that fits resolution of every type of dispute. A variety of mediation approaches may be used. Most of the literature describes the differences between "facilitative" and "evaluative" approaches.

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