Litigation has become a complex, expensive and always an uncertain process. No matter how hard trial counsel work and no matter how brilliant their thoughts, ultimately the final determination of the issues will fall to the hands of jurors who you don’t know with biases and prejudices that they may not even be aware of or a Judge who presents the same uncertainty. In addition, because of the complex rules that surround the litigation process the costs of prosecuting or defending a legal action have continued to escalate.

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In recent years many litigators have turned to mediation to resolve the unknowns and contain costs. Mediation, guided by a trained mediator, put the issues in dispute back in the hands of the parties, where it belongs. Mediation is a process where the parties and their counsel, with the guidance and interaction of the mediator can bring certainty to an uncertain result and, when initiated at the appropriate time in the life of a lawsuit, can significantly reduce costs required to resolve the matter. After all, whether you are the Plaintiff or the Defendant, litigation generally is only resolved by how much you will be paid or how much you will have to pay. Who knows your issues better than you do and who should have the ultimate control over how much, you should.

Selecting a Mediator

The person who facilitates the settlement process, the mediator, is as important to a successful conclusion of litigation as the counsel who you have selected and who will select the mediator.

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Although the selection of a mediator is usually made by the trial counsel, you will be a part of the mediation process and should discuss the mediator’s selection with your attorney. While facilitative mediation does not appear complex in fact it is and to obtain a successful conclusion requires a mediator with training, expertise, and experience. Review the mediator’s background carefully including not only mediation experience but also the professional experience that preceded his role as a mediator. Ask for the mediator’s curriculum vitae. Most mediators were something else prior to taking on the role of a mediator. It is their background that provides the foundation for understanding of the issues and aids in the conversations that will move the process to a successful conclusion.

Invariably cost will be discussed but should not control the decision of who will be your mediator. When viewed in the light of the cost of litigation to final conclusion it is generally a small expense that may save many times the cost of the mediation. Another thought, would you search for the least expensive surgeon to do your heart by-pass or would you select him based on skill and experience?

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Finally, you will spend many hours, and sometimes days, interacting with the mediator. Both the client and his counsel should feel comfortable that the mediator fits their personality and makes them comfortable. If the mediator is not known to your counsel or you, call and have a conversation, then make your selection.