Should I let the other side choose the mediator?
UPDATED: February 6, 2012
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Mediators do not decide cases. If the other side is comfortable with the style of a particular mediator, that mediator may be a good choice. It's not necessarily a good idea to be suspicious of a mediator just because the other side recommended him or her. Most successful mediators end up facilitating many cases with the same parties. It's not an indication of bias, but of trusting that the mediator will perform his or her duties in a professional manner.
What to Avoid in a Mediator
If there is more to your suspicion than the fact that the other side recommended the mediator, you may have reason to challenge the choice. Here are some basic things to avoid with any mediator:
- The mediator has a history of deciding a specific way in the majority of their mediation sessions. For instance, if this mediator’s agreements always favor the person you are suing, that mediator may be biased
- The mediator is related to either party in the case
- The mediator is friends with either party in the case
- There are negative reviews or complaints about the mediator listed on local or national mediation sites, such as mediation.com
If your attorney does not recommend that particular mediator, this is another red flag. Remember that the legal community is relatively small in most areas and both lawyers and others participating in the legal process tend to gain a reputation for their work. If this mediator’s reputation is questionable, avoid him or her if at all possible.
Things to do Before Agreeing on a Mediator
Before agreeing to a particular mediator, it is important that both sides feel comfortable with their choice. Before agreeing to hire a particular mediator you should call the proposed mediator (or better still, have a lawyer call for you) and inquire about what types of cases that mediator has done, how he or she conducts a mediation, and what references can be provided for you to check into. While most areas of law do no require special knowledge on the part of mediator, some areas such as divorce law do. It is important that the mediator be familiar with the laws of a state regarding payment amounts and actions that can and cannot be enforced.
Before agreeing on a mediator, you should also consider contacting the mediator's references to inquire about their opinions of how well the mediation was conducted. While not every party will be completely thrilled that they had to mediate a situation, references can give you an idea of the overall personality and practices of a mediator. The ideal mediator is someone who is both strong enough to keep control of the mediation session, but calm enough to diffuse any heated arguments.
If you are considering mediation as an alternative to traditional litigation, contact your attorney for more details.