A close friend of mine, who happens to be a mediator, asked me what are the key things I look for in a mediator when recommending one to my clients and, what in my opinion, makes a good mediator who I will use again. Although I keep a list of mediators I like, I never actually itemized the characteristics in my mind, which I consider in concluding why I prefer certain mediators and outright object to others.
When he persisted in making me think about and reveal to him the characteristics that caused me to either recommend or reject particular mediators, I told him I would make that a blog topic, so here it is and thanks. He knows who he is. (For those of you readers who have never been involved or have little or no familiarity with mediation, a mediator's sole task is to try and bring parties in a dispute toward resolution voluntarily. It is a very difficult job which requires great skill. What makes it more difficult is that the mediator cannot make either side do anything that party is not agreeable to doing).
Here is what I look for in mediator recommendation/selection, as well as two of my pet peeves.
- Knowledge of subject area. If the case is a health care case, the mediator has to have health care experience. Same for construction. I am mentioning these particular areas because they are ripe for mediation. The first thing the client will ask about is the mediator's experience in these areas.
- Past experience with client. This one is obvious--if the client doesn't like the person, the discussion is over. There have been occasions where I wanted to try and persuade the client to use a particular person with whom they may have had a bad experience, but that I liked, but as I have aged I have learned to suppress those desires. That is a no win situation.
- Past experience with opposing counsel or party. The optimal situation is to use a mediator that both sides like and respect. Some of you may find this surprising, but when I believe my client has a strong case, I often recommend mediators who the other side wants to use even if I don't personally know or particularly like that person (so long as I know that person is good). My hope is that I will be able to convince the mediator, who will then be able to influence the opposing side, to see things my way. I don't do this if I believe I have the weaker side, because then when the mediator tells my client that his or her case is weak, the client will think the mediator is saying that because of the mediator's relationship with opposing counsel.
- Paid rather than court appointed mediator. If the parties have skin in the game, they are more likely to resolve. If the mediator is court appointed and therefore free, my experience is that the clients don't take the mediator as seriously. Of course, the client has to be willing to pay the mediation fees.
- Demeanor. Depending on the client, I want the mediator to have a certain demeanor or style. For example, if I think my client is being unreasonable in his or her position, I look for a tough no nonsense mediator. If I think either my or the opposing client needs hand holding, I will lean toward a mediator that has a more soothing demeanor.
My two pet peeves.
- A mediator guarantees me never recommending him or her again if I believe the mediator is more concerned about settling the case for his or own success statistics rather than truly analyzing the case to see if it is in fact cable of settling, should be settled, or is ripe for settlement then. For example, a case may be quite ripe for settlement but just not at that time, because all of the parties are not present, or certain people key to the settlement are just not prepared at that moment. A good mediator will take all of those things into account and let you know he or she is there to help you, that the case may not be ready for settlement at that time, and that they will stay on it and keep in touch to assist to settle the case when it is ready for settlement. But certain other mediators with whom I have dealt (and surprisingly some that I knew to be very reputable) act in a desperate fashion and try anything to settle the case right then at all costs.
- Good mediators settle cases by telling you your weaknesses and the other side's strengths, and vice versa, in private. But what a mediator should never do, and I have had it happen once, is to tell the other side the weaknesses in your case in front of you. That is the best way to not effectuate a settlement, which is after all the only thing the mediator is supposed to do if at all possible.
There are plenty of excellent mediators out there; just like anything else, all it takes to find one is due diligence.
Now for the Opening Day memory...
Although standing only 5'8" and weighing 170 during his prime, Jim Wynn--the "Toy Cannon"--slugged 291 career home runs including more than 30 three times. In 1967, he hit 37 and was edged out for the home run title by Hank Aaron, who hit 39. Hammering Hank said Jim really was the home run champ that year because he played in the spacious Astrodome, while Hank played in the friendly confines of Atlanta-Fulton County Stadium. Jim began his 15 year MLB career (1963-1977) when he was selected in the 1962 player draft by the expansion Houston Colt 45s, who later became the Astros. He was an Astros stalwart in the outfield for 11 years, which resulted in the Astros retiring his number 24 in 2005. He was traded to the Dodgers prior to the 1974 season and was instrumental in helping them win the pennant and proceed to the World Series where they were defeated by the Oakland A's. In that 1974 season, he hit 32 home runs and knocked in 108 and won Comeback Player of the Year. He hurt his shoulder in 1975, was traded to the Atlanta Braves in 1976 and finished his career with the Yankees and Milwaukee Brewers in 1977. In addition to his power, Jim was an on base machine who was also quite fast for a power hitter. He walked over 100 times five times in his career, including 148 times in 1969 and stole over 20 bases three times with a high of 43 in 1965. He was also an engaging interviewee and one of my more memorable ones.
Here are his Opening Day memories.
"The 1965 Opening Day was the opening of the Astrodome, the 'Eighth Wonder of the World', as it was called back then. They introduced the starters on a rocket ship, Houston being the space capital of the world back then. My first appearance in the Astrodome was nerve wracking because we couldn't see the ball! As an outfielder, let me tell you, it was important to be able to see the ball in the rafters. I remember we faced Chris Short, one of the premier lefthanders, and he struck me out three times and we lost.
"The most exciting Opening Day for me was in 1974. It was my first opener in Los Angeles, and we played in front of 50,000 plus fans, against San Diego. I almost tripped as I was introduced because I was so excited. I had promised the fans of Los Angeles, and Peter and Walter O'Malley, that we'd win the National League pennant. Everything started off real well. First time at bat, my knees were buckling and shaking and the first pitch was a strike. The second pitch I swung at and bounced to the third baseman who bobbled it and I beat it out. But the scorekeeper gave me a single! If I had done that in Houston it would have been an error! That was the start of a really beautiful year for me. I went 3 for 5, homered and knocked in three. I got off to a real good rapport with the fans of Los Angeles because of Opening Day. They started "Cannon Country" in the left center field stands. That got me really going. Don Sutton said it was nice to see a center fielder come to work everyday and dive for balls and show that he's willing to do anything for the team.
"Opening Day in 1977 was with the Yankees at Yankee Stadium against the Milwaukee Brewers. I wasn't supposed to start that day but Billy Martin called me in and told me I was starting. I hit a home run. Reggie Jackson used to get on my case all the time. You see, I was called the Toy Cannon over in the National League. When I saw him on Opening Day, he said, 'This ball park is a little too big for you!' I looked at him and said, 'Get out of my face - don't talk to me.' My first at bat I hit the ball off the wall in dead center field. The first guy to meet me at home plate was Reggie. I did not shake his hand - I ran right by him. I shook everyone else's hand in the dugout. I assumed my position at the end of the bench and Reggie, lo and behold, came up and apologized and said, 'You truly are the Toy Cannon,' and I said, 'Don't you ever forget it!'"
See you in two. Richie