MEDIATION TIP #7 – WHO PICKS THE MEDIATOR?
September 11, 2014 by Glenn Loewenthal
As a mediator, I am privy to being able to ask this question to both plaintiff and defense counsel. I am not surprised by the answers I get. For the most part, when I ask this question to attorneys representing the plaintiff, they say they like to let the defense counsel pick the mediator. And for the most part, when I ask this question to attorneys representing the defendant, they say they want the attorney for the plaintiff to pick the mediator. Why does each side want the other to pick the mediator?
The attorneys for the plaintiffs will usually say they want to let the defense counsel pick the mediator because if they pick the mediator, that means that the mediator will have more sway with the defense counsel and the adjuster, and that the mediator will then be able to turn that gravitas into more money for their clients. The attorneys for the defendants will usually say that they want to let the plaintiff’s counsel pick the mediator because that means the mediator will have more sway with the plaintiff’s counsel and the plaintiff, and that the mediator will then be able to turn that gravitas into convincing the plaintiff’s counsel and the plaintiff to accept the defense’s best offer to settle the case. Hmmm, sounds like both sides are really saying the same thing with the same reasons.
Now, is any of this actually true? In my opinion, the answer is yes and no. I say no because a good mediator will have gravitas in both rooms. In other words, a good mediator should have the respect of the attorneys, the parties and the adjusters. The mediator is not an advocate for either side, but is an advocate for a fair resolution. The mediator will tell the plaintiff if they are valuing a case too high and will tell the defense that they are valuing the case too low, if it is needed. I say yes because sometimes perception is reality. If the plaintiff lets the defendant pick the mediator, the plaintiff may perceive that mediator will help the plaintiff to get more money from the other room, and that perception alone will allow the plaintiff to be more comfortable with the process and lead to a resolution. On the same note, if the defendant lets the plaintiff pick the mediator, the folks in the defense room may perceive that the mediator will be able to convince the plaintiff to settle the case. The perceptions, whether true or not, become reality if both sides feel that comfort level needed to resolve the case.
So, getting back to the title of this blog, who should pick the mediator? In my opinion, it doesn’t matter who picks. The most important thing is that both sides are comfortable with the pick. The better question is who is the best mediator for this particular case? The answer to that question depends on several variable factors, and I will discuss that in my next blog. As always, if you have any questions about your mediation or the mediation process, or if there is a mediation topic you would like to see for a future blog, please contact me at firstname.lastname@example.org.