ADR CORNER
Selecting the Right Mediator
WILLIAM J . CEA
Pursuant to Rule 10.200 of the Florida Rules for Certified and Court-Appointed Mediators ( hereinafter “ Rules ”), court appointed mediators are mediators selected by the parties or appointed by the court as the mediator in court-ordered mediations . The Rules provide ethical standards of conduct for certified and court-appointed mediators . In my experience , it is the parties who generally select the mediator .
How should the parties select a mediator ? Counsel for the parties may look at factors such as availability , professional reputation , subject matter experience , fees and costs , mediation style , and the like . Often-times , counsel for the parties may practice in specific areas of the law and have their “ go to ” mediators that they prefer .
For the most part , the attorneys will circulate a few proposed mediator names and agree on one . I would suggest that counsel take some time to consider whether the proposed mediators are right for the case . While a mediator is not required to have substantive knowledge of the type of case , that is one factor to consider . Other factors that may be more subtle include the mediator ’ s availability for pre-mediation caucuses , demeanor , and ability to be empathetic , as examples .
On the one hand , the Rules provide that the ultimate decision-making authority rests solely with the parties . On the other hand , the mediator should have the ability to reduce obstacles to communication , assist in the identification of issues and exploration of alternatives , and otherwise act as a facilitator of resolution . For example , as a construction attorney , I may be able to point out impediments to resolution of a case involving alleged defects . It may be the case where parties have expended significant time on liability but not damages . It is helpful to point out potential roadblocks to the attorneys , where possible and without breaching confidentiality , to avoid frustration during mediation . If the defense does not know how much the plaintiff thinks it will take to make repairs , it will create a hurdle to
settlement . The Rules permit a mediator to provide information that the mediator is qualified by training or experience to provide , so long as it is consistent with impartiality and preserving selfdetermination . In other words , impartiality and neutrality are not mutually exclusive with knowledge and experience .
You may want to ask yourself questions , such as : What is the nature of the dispute and who has experience in the area ? How much of a factor will demeanor be for the parties ? Will the clients benefit from pre-mediation caucus sessions or other conferences to facilitate the process and is the mediator available ? Will language or other cultural differences be an issue ?
We have all heard attorneys and parties say they want a “ strong ” or “ assertive ” mediator , but what does that mean and is that the right approach to selecting a mediator ? Perhaps the better question is whether the mediator is the right fit for the case ? How will my client feel about the mediator and the process ? What are the mediator rates and policies as to minimum fees and / or travel expenses ? Does the mediator have the time to commit to parties to the extent necessary ?
Another approach is to call prospective mediators to discuss availability and any concerns or priorities that you may have in mind . My presumption is that most mediators would welcome the opportunity to discuss a potential matter , their availability , and what you envision for the process .
The use of alternative dispute resolution procedures is on the rise . Whether mediation is voluntary , required by contract , or court ordered , the pool of qualified mediators has increased along with the demand . My personal bias , if I am allowed to say that , is to locate a mediator that has substantive experience in handling the type of issues and dispute and the availability to commit the time needed to the parties . For the most part these factors weigh more heavily in my mind , however , there are always more unique scenarios where the personality of
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the parties may require a different type or style of mediator .
The bottom line in my opinion is to expand on the traditional approach of recommending use of the “ go to ” mediator list and ask some questions , such as those outlined above . You may have a great relationship with a mediator and feel entirely comfortable with the style and costs , but will your client agree ?
William J . Cea , Esq . is a Shareholder with Becker & Poliakoff , P . A ., and is based in the firm ’ s West Palm Beach Office . Mr . Cea is a Board Certified Construction Attorney and Certified Circuit Court Mediator . Mr . Cea concentrates his practice in the areas of construction defects litigation , public procurement and mediation . Mr . Cea has lectured for several organizations , on topics such as mediation and construction law , including The Florida Bar , the Florida Association of Public Procurement Officials , Inc ., the Construction Owners Association of America , Nova Law School , and the Palm Beach County Bar Association . He may be reached at ( 561 ) 820-2888 , or via email @ wcea @ beckerlawyers . com .
For additional ADR tips and resources , go to http :// www . palmbeachbar . org / adr-2