The removal of court-ordered mediation shatters these illusions. Now lawyers have to admit to themselves, and inform their clients, that they should consider a mediated settlement. And they have to actively get involved in the selection of a neutral.
This can be a scary and unpleasant prospect. Attorneys are often reluctant to initiate a conversation with opposing counsel about finding a neutral acceptable to both sides. The distrust and bad feelings on both sides can make that a difficult discussion. Moreover, the kind of conversation best suited to choosing a mediator can be quite different from the adversarial nature of counsels' prior dealings. Prior to being sent to mediation, parties could argue and disagree about everything, such as motions addressed to the pleadings or discovery disputes, and attorneys could rely on the court to resolve those disagreements. Without court-ordered mediation, there is now no one to choose a mediator for the parties. If the parties want to mediate, they are probably going to have to agree on a mediator all by themselves. Ironically, the removal of ADR from the courts might have the effect of encouraging attorneys to adopt a more collaborative approach toward resolving their dispute--because they now have to choose their own mediator--than they did previously when the court did all the work for them, allowing them to maintain an adversarial posture.
Now a lot of attorneys--those who have always disdained the court panels of randomly-assigned neutrals--already have plenty of experience choosing a mediator. But have they really thought through the best way of going about it? Some attorneys like to leave the choice up to their adversary, on the plausible theory that their adversary is more likely to listen to someone they like. Others will look at anyone their adversary suggests with great suspicion, on the equally plausible theory that anyone their adversary thinks is good for their client, is probably bad for the other side. Very often, attorneys will just ask their colleagues down the hall to recommend someone, or vet the names of prospective mediators with colleagues who may have very little experience with those names. They might choose based on geographical proximity, or subject matter expertise, or some other system that doesn't require much thought. They might have too limited a list of candidates, or limited experience with the candidates who are suggested.
|"The Usual Suspects"|
A better method might require counsel to think about what kind of person might have the most effect on their own client's thinking about the case, and on their adversary's thinking. They might think about using a mediator who takes both parties out of their own comfort zones. They might need to collaborate with opposing counsel about what kind of person that might be.
In some cases, the parties might need to hear an authoritative-sounding opinion from a judge or other evaluative-type mediator to shake the parties out of their reluctance to let go of their assumptions. In others, the parties might be better off with a more facilitative mediator who will help them think about how best to satisfy their underlying interests.
One way to approach the selection of a mediator is to try to identify the problem that is keeping the case from being resolved--whether it is a factual disagreement, a disagreement about the law, or an emotional issue--and then think about the type of person who can best try to remove those impediments. Attorneys might be well served by having a candid discussion with opposing counsel about the factors that are causing each side to view the case the way they do, and about what approaches might cause the parties to look at the case differently.
When counsel start to think about cases in those terms, they've already gone a long way toward helping the mediation process work better. Because by doing that, they're starting to think like mediators themselves, and are helping to work toward agreements large and small that will move the dispute toward resolution. In other words, if the parties use the right process for choosing a mediator, a process that itself helps find out what needs to be done to resolve the case, then the act of choosing a mediator can by itself bring the case a lot closer to resolution.