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 this.

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 dispute.

Gary Morgerman
Construction Mediation Inc.
334 West 84 Street, #2
New York, NY 10024

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