Common mistakes in…choosing a mediator

Mediation offers an efficient and cost-effective way to try and resolve disputes that may arise on any major project. Choosing the right mediator is absolutely crucial to getting the most out of your mediation. A good mediator will have a strong influence on the parties’ attitude towards each other and their willingness to compromise. Doing your homework at an early stage will pay dividends on the day.

So here are some pointers:

• Do pick an expert mediator rather than an expert in the subject matter of the dispute. The key skill for a mediator is to challenge the parties’ points of view and bring them closer to settlement. An experienced mediator will have an artillery of techniques to influence the parties and alter their perspective of the strengths and weaknesses of the claim. Check whether they have any formal mediation qualifications/accreditation.
• Do consider what best suits your objectives and choose your mediator accordingly.
• Don’t automatically use the same person for all disputes. Do you want a mediator who will facilitate a commercial deal or one who will give a view on the legal merits (and hopefully persuade the other side you are right)? Not surprisingly, if your mediator is a solicitor or a barrister, they are likely to focus on the legal analysis and may be more willing to express a view on the strengths of the parties’ positions. If your objective is simply to reach a deal, the analysis that a lawyer can offer might be wasted.
• Don’t pick a mediator who is too passive. An effective mediator is pro-active and assertive. He doesn’t need to be imposing and loud, but he needs to question the parties. If the mediator just accepts what you say, he is unlikely to challenge the other side either. This will not bring the parties any nearer to settlement.
• Don’t pick a mediator who is too busy to prepare. Thorough preparation is key to establishing the parties’ trust in the mediator. The parties will have invested a large amount of time and emotional energy in preparing for the mediation. They will feel that much of this has been wasted if the mediator turns up unprepared. Likewise, a very busy mediator will not have time to follow up. Although mediations do not always settle on the day, they often settle soon afterwards if the momentum is retained.
• Don’t pick a mediator of whom you have no experience. Ask for recommendations and opinions. Even if you receive mixed reviews, you will be better placed to decide if this mediator is your best available option. To this end, try your best to agree a mediator with the other side. Don’t be afraid to agree to their suggestion - you may even gain some goodwill by doing so. It is very unlikely that a reputable mediator will be “on their side”. Having said that, only agree if you are comfortable that the mediator is able to meet your objectives. The mediator suggested by the other side is more likely to be the appropriate person for your particular dispute than a mediator imposed by a nominating body.
• Do consider having two mediators to work as a team if your dispute is large. Two mediators can cover much more ground than one. One option is to allow the first mediator to pick his co-mediator. This will also ensure that they can work well together. If your dispute is large enough to need two mediators, the cost will be outweighed by the benefits.

However, don’t appoint one mediator as the leader. The parties will not want to engage with the junior mediator and the benefit of having two facilitators will be lost.
Deciding to mediate is only the first step in the mediation process. Taking a proactive approach when deciding who to appoint as your mediator will maximise your chances of a successful outcome.

Alexandra Clough is an associate at Berwin Leighton Paisner

This article was originally publbished under the title “The inbetweenies”