You Get the Mediator You Deserve
(A Personal Perspective)
If I were you and had to
select a mediator for a specific commercial dispute, say one involving
construction issues, I would select me. Let's get that out of the way
before I give you all the reasons why a well-trained, experienced mediator
with expertise in the subject matter of your dispute is best suited to
help you resolve it. But finding such a mediator is not a crap shoot.
You get the mediator you deserve!
There are mediators and
those who call themselves mediators simply because they have a law degree,
sat on the bench, or have taken a one-day training course given by any
number of the newly established ADR companies that have sprouted up across
the nation. Mediation's revival has been so recent and its commercial
use so relatively sparse (compared with its utilization in community,
interpersonal disputes) that one has to wonder who trained the present
group of trainers who are now "certifying" others to mediate commercial
disputes after a 6-hour training course. And how extensive is the mediation
experience of these trainers?
When the West Coast throng
of retired judges, who left behind a log-jammed, commercial court system,
were banded together in the realization that mediation could be the dam-buster,
they created a mediation wave that washed across the country, crashing
upon the Eastern Shore some five years ago. It awoke ADR's sleeping giant,
the American Arbitration Association, who since its inception had been
happily chugging along financially secure with its domination of the arbitration
field mainly because of its loyal, large and dedicated panel of arbitrators
from the business community. Suddenly the AAA, and everybody else who
felt the spray, was pushing mediation. Any number of companies sprung
up offering mediation with a stable full of mediators, dominated by ex-judges
and lawyers, to accommodate your every mediation need. The AAA's flagship
publication, the Arbitration Journal, resurfaced as the Dispute
Resolution Journal with mediation as its main focus. Coincidentally,
the AAA revamped its panel of experts, removing many of those panelists
with specific industry expertise in favor of ex-judges and lawyers to
mirror the ranks of its new, aggressive ADR competition.
But in all of these organizations,
there are mediators and there are mediators. Visit the home page of the
AAA and find the "Sample Biographies" in its "Roster of Neutrals" section.
You may be surprised to find that a "Full-time Arbitrator and Mediator,"
an ex-judge, has never taken a mediation training course. And while I
no have knowledge to question this judges' mediation skills, a few years
ago I took a two-day mediation training course with 20 retired judges
and discovered that even judges need formal and comprehensive training
in mediation, hopefully followed by actual and extensive case experience.
When I started mediating
in the early 80's, commercial cases were few and far between. During one
three-year stretch I mediated all the construction cases for one of the
AAA's regional offices in the New York area. A grand total of three! So
I decided hat if I was to get any experience to enhance my mediation skills
I would have to look elsewhere for process experience knowing well that
commercial mediation would gather momentum just like a rolling stone.
This led me to my local community mediation center. It trained me in interpersonal
mediation - mediation rules are the same whether commercial or community
- and I have been mediating them ever since along with my, for fee, construction
mediations which, happily, I now do with an ever increasing frequency
from a variety of public and private sources.
As the mediation market
expanded over the past few years, many mediators not up to speed but eager
to get on the mediation bandwagon and willing to mediate any kind of commercial
dispute that came their way were admitted into the ranks. Ask someone
in the construction business who has had a mediation with an ex-judge
or lawyer without a real construction background. "He didn't know what
we were talking about" is the common complaint or "He still thought he
was on the bench and could pressure us to agree to a settlement."
My firm belief, therefore,
is that if the dispute is about complex factual issues peculiar to a particular
industry, such issues are best appreciated by business people with expertise
in that industry. Such a mediator is best suited to convince either or
both parties to moderate its demands; the so-called "devil's advocate"
role that must be played in the majority of construction disputes.
By the same virtue, if the
controversy involves complex issues of law (a rarity in construction cases)
a mediator who is a learned lawyer and certainly an ex-judge, will be
better able to evaluate the parties' respective claims than a mediator
who is not a member of the bar. Some have argued that "Even if there are
legal issues a skilled mediator should be able to encourage each party's
lawyer to realistically evaluate the other party's arguments and to moderate
his or her own party's demands if there is some validity to the other
party's position." But a lawyer mediator is best equipped to accomplish
That's why I restrict my
commercial mediations to construction cases because of my background (See
Resume). So before you agree to an ex-judge
or lawyer as a mediator whose credentials raise questions about their
training, depth of mediation experience and subject matter expertise,
speak to parties who have had a mediation with them or request a pre-mediation
conference with that mediator and ask the kinds of questions that will
reveal how much the mediator knows about the subject matter of your dispute
whether it be a bankruptcy, intellectual property rights or a construction
Construction Mediation Inc.
334 West 84 Street, #2
New York, NY 10024
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212 873 3029 FAX
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