What gets us into trouble is not what we don't know. It's what we know for sure that just ain't so.

- Mark Twain

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Are You Ready For Mediation?

1.  Timing: Is your case ready for mediation?  Do you and your client have sufficient information.  Do you know whether settlement makes sense and for how much?  If not, can you trust the other side to be candid and provide adequate information during the process?  If not, you may need to take some discovery before you try mediation.

2.  Mediator Selection: No two cases are alike.  Select the mediator who is right for your particular dispute.

  • Do you want a subject matter expert or a process expert?  If your dispute is highly technical, you might prefer a mediator familiar with the field who doesn’t require extensive education.  On the other hand, if your matter is confidential and sensitive, you might prefer a process expert to an industry insider.
  • Will there be high emotions at the table?  If so, a mediator skilled at managing the process when the parties get escalated and emotional is your best bet.
  • Do you need someone the other side will trust?  In an employment dispute, for example, defendants often select plaintiff lawyers for their ability to speak directly to the plaintiff and explain the inadequacies of his claims.  Perhaps you want a mediator recommended by the other side to be sure the mediator is trusted and will be listened to.
  • Does your case involve multiple parties?  If so, you probably want a mediator experienced in designing a process for multiple parties.
  • Does your dispute involve high dollars?  If so, you should select a mediator experienced with big cases who is comfortable discussing big numbers.
  • Is your dispute intractable and stubborn?  If so, you probably want a mediator known for patience and tenacity; someone who will not give up easily.

3.  Mediator Vetting: If you haven’t previously worked with a mediator, check him or her out with people you trust.

  • Ask your partners about their experience.
  • Use Google to see what information might be available on the ‘Net.   
  • If the mediator has a website, learn what you can from it 
  • Call a friend 
  • Ask the mediator questions directly.  Ex parte communication is permitted in mediation.  You’re free to ask all the questions you like.

Please also review:

Mediation Overview

Preparing for Mediation

The Mediation Process

Mediation Models

Mediation Process Road Map