Jousting in the Selection of a Mediator
Sometimes, lawyering is like jousting. When charging ahead with the litigation, each side strategically plans just how to lance the other, both sides are wary of losing, and each puts on an armored, protective attitude to avoid getting hurt in the process.
It is no wonder that lawyers have used “esquire” as part of their professional title. According to http://www.merriam-webster.com/dictionary/esquire , esquire denotes “a candidate for knighthood serving as shield bearer and attendant to a knight.”
So when it comes to selecting a mediator, sometimes the other side’s suggestion as to whom to engage for the mediation is seen as a lance to be shielded, i.e, to be refused, on the theory that the other side’s choice of mediator will be harmful to one’s case.
I think this reaction is nonsense, and naive.
Mediators are neutral, owe allegiance to neither side, have a duty to both sides to be impartial and procedurally fair, and have a keen interest in helping the clients on both sides get to peace.
At least, that’s how I approach every mediation.
Of course, the one side’s refusal of the other side’s mediator may be a strategy of its own – to frustrate the suggesting side and gain some perceived intrinsic advantage by saying “no.”
But I think that course of action misses the point:
Lawyers suggest mediators that they believe ultimately will help settle the case. They may have worked with their suggested mediators before. Or, after some inquiry and research they may have determined that the mediator has the right background, experience and/or approach for the particular case.
In the instance where the lawyer has worked previously with the mediator, the other side could assume that the suggesting lawyer is more apt to listen to or be influenced or persuaded by what the mediator says in private.
To me, that is the more constructive approach to the mediator selection, and the other side’s suggestion should be welcomed.
Where the suggesting lawyer has offered a particular mediator based upon inquiry and research, the lawyer receiving the suggestion could also contact the suggested mediator directly and interview him or her — which he or she should do in any event — so as to make an informed decision, rather than reject the mediator out of hand.
Every mediator I know welcomes such a call.
The ultimate question is not whether to distrust the suggestion ipso facto because it came from the other side, but whether to place some trust in the mediator as a neutral and a professional, who just might help get the case settled in a manner acceptable to the client.
This may require that the lawyers put down their lances, suspend their jousting, and collaborate in the selection of mediator for their mutual benefit.
And this, of course, does require a bit of trust in the other lawyer as a professional and a colleague, which may accrue to the benefit of all of the clients.
David I. Karp, Esq., is a full time mediator of real estate and business disputes, primarily. His website is at http://karpmediation.com . He apologizes for any ads attached to this post by wordpress.com; they are not his.