How to Select an Early Mediator
By Sherman Knight.
When choosing a mediator, you should look for three things.
- Experience as a Mediator.
- Experience in the Field of the Dispute.
- Experience in the Legal Side of the Dispute.
Experience as a Mediator. An experienced mediator can be successful even if the dispute is in an area that is foreign to the mediator. Their experience along with the techniques they have refined over the years will be successful across a wide range of disputes.
A good mediator will not tell you what they think you should do, but they can create a situation where a party reevaluates their case. A jigsaw puzzle consists of hundreds of pieces that can only be assembled on way. A construction case may have just as many factual and legal pieces, but the case can be assembled in many different ways. A mediator brings a fresh set of eyes to a construction mediation that see a different way of assembling the case. Carefully presenting this difference, typically in the form of guided questions, causes the party to reassess their position. By letting the party figures it out on their own, a reality check may be immediate.
Experience in the Field of the Dispute. A fresh set of eyes may not have much value in early mediation if the mediator does not know what they are looking at. In that situation, the mediator may never see the different way of assembling the factual side of the case that would cause the party to reevaluate their position. Early mediation, no matter what the issues are, benefit from someone with a background in the subject area of the mediation.
Experience in the Legal Side of the Dispute. A fresh set of eyes may not have much value in early mediation if the mediator does not understand the legal implications. If that’s the situation, the mediator may never see the blending of a different factual and legal analysis that would cause a party to reevaluate their side of the case. Early mediation, no matter what the issues are, benefit from someone with a legal background in the issues of the mediation.
In the early stages of a lawsuit, the emotion of the parties may be driving the decision more than the facts of the case. After all, it’s all the other sides fault. This mind set may result in the party spending a lot of money before the party has calmed down enough to really see their own case. A reality check, early in the litigation can result in huge savings.
There are experienced mediators that have worked in construction (contractor, vendor, design professional, surveyor) and are experienced attorneys that focus their practice on construction issues. An experienced mediator with such a background goes a long way in helping the parties resolve their dispute in early mediation.
