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Bar Association of San Francisco Member Benefits: Publications

Avoiding Costly Mistakes in Mediation/Part 2
Getting the Right Mediator


By Nancy Neal Yeend and Carol Webster Millie, Silicon Valley Mediation Group


This is the second in a series of three articles that address how to avoid costly mistakes before mediation. In February we discussed timing of the mediation process, and in April you can see how to effectively prepare for the mediation.

Our code of ethics states that a mediator may not act as co-counsel, therapist, or arbiter. Each mediator has his or her own style and not all mediators are created equal. Counsel should resist choosing a mediator solely by the length of a resume, title (i.e., retired judge) or accumulation of academic degrees. These in no way guarantee an effective mediator. If you choose a neutral whose mediation feels more like a settlement conference and it fails, litigation and resulting costs will resume. As an alternative to resumption of litigation, try a new mediator. In the heat of battle, many defendants claim that they would rather pay counsel than the plaintiff, but forget they said it when they end up paying both.

Is business conflict only about the money? Not necessarily. Unresolved business conflict can suggest the possibility of failure of trust. Prevailing parties after trial describe a sense of Pyrrhic victory. Parties in a well-mediated case frequently describe the process as “very fair” and report greater satisfaction with the outcome. Smart lawyers wish to have a cost-effective, result-oriented reputation. Satisfied clients make referrals.

Once a mediator is identified, he or she should be contacted to answer questions to determine suitability for the case. Some important questions in any case include: “Does the mediator understand the business and have a track record helping parties design solutions that will bring the parties into the discussion? How has the mediator dissolved a stalemate in other cases? How would he or she get the other side back to the table?”

Although it is not necessary for a skilled mediator to have experience with the industry or subject matter involved, it can be very useful when they do. “What is your direct experience with manufacturing?” Listen to the answers carefully. Is the mediator answering the question? Pinpoint questioning of the mediator before selection can increase settlement prospects.

To learn more, join us on May 12, 2011 for our seminar Using Mediation Effectively: Avoiding Costly Mistakes, which will include a list of questions to ask when interviewing mediators.

Nancy Neal Yeend has been a civil mediator for 30 years and is a faculty member at the National Judicial College. Carol Webster Millie, has been an attorney/mediator for twenty years and specializes in early business conflict resolution. Both Nancy and Carol are founding members of Silicon Valley Mediation Group.

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