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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.

Facilitative and Evaluative Approaches
A facilitative approach aims to resolve a dispute that preserves an existing relationship. So the mediator aims to help the parties define, understand, and resolve the problems they wish to address. An evaluative approach injects the mediator's opinion, through a range of evaluative techniques, about which side will prevail if the dispute goes to trial or arbitration. The evaluative approach tends to focus on resolution of discrete legal issues, and it is most often used by former judges drawing on their experiences with juries.

Although some mediators are able to employ multiple styles at different points during a mediation based on an assessment of what approach is most likely to move the participants toward resolution, many lack the skill, training, or experience—and they end up using one of these basic styles. That makes it important for the lawyer who is seeking a mediator to figure out exactly what problems need to be solved, and whether the mediator will use an approach most likely to succeed. It's best to learn this up front, by asking the mediator directly how he or she approaches problems before that mediator is hired.

Case Study
In the mediation I refer to, I represented a state university that started a small student-run radio station in a campus basement several decades ago. Over the years, it grew to a public radio network with 22 stations. A foundation created to raise money for the radio operations was the other party to the dispute. The foundation expanded its activities beyond pure fund-raising for radio by getting involved in restoring theaters, creating an Internet service provider, and developing real estate. Eventually, a variety of issues needed resolving. These included federal tax issues, state law governance issues for charitable benefit corporations, and Federal Communications Commission licensing issues.

The university and the foundation agreed on a good mediator: This former judge even had experience in mediating disputes between universities and foundations. He mastered the subject matter. He met separately with each side in advance of the joint sessions. With regard to the complicated tax and charitable benefit laws, he consulted an independent adviser whom we recommended.

The mediator used an evaluative mode. He also decided that because of the hostility between the clients, which included a demand letter and threats of litigation, it was best to keep them apart. He engaged in shuttle diplomacy. The parties never met. My client was thrilled to learn that the mediator agreed with our legal positions on the issues that would arise if trial ensued. (And presumably, the foundation representatives were dismayed and angered.)

By late on the second day, a delegation of foundation board members and the chief financial officer of the university had signed a settlement memorandum. Of necessity, the settlement memorandum was subject to further board approval at the next board meeting of the foundation (a subject for another article). By its terms, the settlement was confidential until after the board vote.

We ended up with a second mediation. Leaks began immediately after the first mediation. Newspapers, television, and radio were all over it. The story attracted the attention of local mayors, state representatives, and eventually the state governor. The foundation board refused to approve the settlement memorandum. They believed it had been forced on them. The governor appointed a new mediator, and we started over.

Our new mediator decided that if the parties were hostile to each other, it was because they needed more time together, not less. She recognized that the university and the foundation needed to work together after the current issues were resolved. She spent no time wondering about who might win a lawsuit. She quickly created workgroups with persons from both sides to answer questions such as what additional information needed to be exchanged, what financial projections for a restructured organization would look like, and what made the most sense for dealing with license issues. She attended those meetings.

By the time everyone reassembled for another two-day mediation, we were a single team trying to solve problems together, rather than two sides aiming to reach a deal that each could reluctantly live with. The mediation became a session to restructure entities to be sustaining and in compliance with all the various rules and regulations. The mediator told the lawyers to take a backseat—our job was just to make sure that what the clients worked out was legal. The executive director of the radio network and the president of the foundation did most of the talking, although other university employees and foundation board members were active participants.

In that second mediation, everyone's time was spent together in the same room. We worked together and we ate together. We reached an agreement, again. This one, everyone agreed, should not attempt to be confidential. After the agreement was reached, the mediator spent another two hours with us so that we could prepare everyone for how to answer questions and what to say in a press release and press conference.

Questions to Ask Potential Mediators
Our success flowed from the process. It was not just a question of "facilitative or evaluative?" Success flowed from answers to more specific questions such as these: 1) Will you look beyond the legal issues in defining the problem to be resolved? Or, instead, will you approach the matter by emphasizing legal documents, technical reports, or legal briefs? 2) Will you have both clients discuss the personal impact of the disputes so that each could understand the perspective of the other? Or will you keep the parties apart as much as possible? 3) Will you consider the parties to be capable of understanding and explaining their situations? Or do you plan on letting the lawyers do most or all of the talking? 4) Will you be giving an advisory opinion about who would win or lose a lawsuit? Or will you serve as our guide in a work session where the parties develop their options for a restructuring and settlement?

Every case is different, but thinking about what answers to these questions best fit your situation may enable you to solve your client's problems with the most appropriate mediator.

Keywords: litigation, alternative dispute resolution, mediation, facilitative, evaluative, caucus