Finding a competent mediator or arbitrator

How to analyze the skills of the neutral required for your particular case

2016 August

Large amounts of time and money are wasted each year by counsel who hire ineffective mediators. Worse yet, cases may be permanently lost by a poor choice of arbitrator. Too many attorneys do not give much thought to the selection of either type of neutral. Due diligence in researching the neutral is as important as researching a surgeon. Either one can do extensive damage if not experienced or capable in your particular legal or medical issues.

Of course, a mediator does not make decisions, but the result of not resolving a case at best, is a waste of time, attorney fees and costs, and at worst, may lead to an unnecessary trial and huge total loss for the non-prevailing parties. In a binding arbitration, the award of the arbitrator(s) can be catastrophic to the losing party, and grounds for appeal are extremely limited.

The good news is that once you have completed the essential, time-consuming and arduous task of vetting a number of mediators and arbitrators, you probably will not have to do so again soon, as you will have compiled a reliable list.

Because of the very different roles played by mediators and arbitrators, the process of selecting each requires different approaches. I will first discuss what should be considered in selecting an excellent mediator.

I. Selecting a competent mediator

The expanding alternate dispute resolution market has caused a tsunami of retired judges, attorneys and even laypersons, who desire to be mediators. Sadly, due to the dearth of regulations and certification of mediators, anyone, qualified or not, may market themselves as such. Those seeking a well-qualified mediator must use diligence and caution in their search.

An excellent mediator is truly neutral

The legal definition of a mediator is a “neutral facilitator.” Obviously, one should select a mediator who is completely neutral, and in whom there is confidence that no favoritism will be shown to either side in influencing the terms of the settlement. Neutrality is a moral and ethical consideration, in which prior areas of legal practice play no role. In that regard, the character and reputation of the individual in the legal community, as well as your own experience with the person are of utmost importance.

Do not seek a mediator who you feel will be partial to you. Even though it may appear that such may be beneficial to your client, it truly is not. It is never good to have a “yes” person. The foremost desirable trait of a good mediator is the ability to confidentially listen to each side and fully discuss the material issues. A mediator should be willing to reconsider her or his opinions after thorough discussion. All parties should seek a mediator who will then tell them, honestly and impartially, positive or negative, of the merits of their side of the case should they proceed to trial. Should the case not settle, the mediation may still be beneficial, as you will have gained valuable insights into your case’s vulnerabilities to use in preparing for trial.

Mediators only give opinions

The mediator is there to facilitate a settlement. However, opinions of the mediator are only for the consideration of the various parties to the case. No legal advice is given by the mediator. The respective attorneys give legal advice, and then only the client-parties can decide whether to settle and the terms thereof.

Look for confidence and tenacity

Tenacity is crucial for a mediator to be effective. Many matters are settled at the “eleventh hour” (sometimes literally!), only because the mediator persisted in probing for creative ways to bring the parties to agreement. Occasionally, the strength of the mediator is tested, by having to cajole one party or the other, or even both, to remain at the negotiation table. A mediator who is timid or flaccid should be rejected out-of-hand. Ideally, pro-activity, strength and flexibility are also to be sought.

A general range of legal knowledge is sufficient

In investigating the background of a mediator, many attorneys begin with a misconception of what skills a mediator needs to facilitate the resolution of a case. They focus on the areas of law practiced by the mediator. While that is very important, especially in specialized areas of the law, such as, family law, probate, intellectual property and large commercial construction cases, etc., it is of lesser importance in most mediated cases. A generalized knowledge of the civil law is usually sufficient, especially when counsel provides the mediator with a thorough briefing of the issues, facts and law in their case.

Courtroom experience is essential

Prior courtroom experience as a judge or trial lawyer, is very valuable. The more extensive, the better. A mediator’s experienced-based ability to give all parties in the case her or his opinion regarding the likely consequences in both costs and outcome of trial, is extremely important in moving the parties toward settlement.

It is also necessary that the mediator have a wide range of experience that has allowed her or him to know and understand people from all walks of life.

A working knowledge of psychology

A thorough knowledge of psychology is frequently more important for a mediator to have than an extensive background in a certain area of the law. Understanding how to persuade and move the parties is a sine qua non of successful mediation. The ability to intuit others’ motivations is also a rare, but very desirable quality, which usually separates the average from the excellent mediator.

A range of legal experience

Certainly, extensive and varied civil transactional and litigation experience is essential in a mediator. Persons without civil litigation experience either as an attorney, judge or both, are not equipped to render opinions regarding the likely consequences of trial in a particular civil matter. Prior work as a trial attorney and/or judge handling civil law and motion and trials should primarily be considered a prerequisite to selection of a mediator.

Often, it is felt that a person with some criminal law experience, will not have the skills to mediate civil cases. However, experience as a prosecutor, judge periodically handling a criminal calendar, or especially a criminal law defense attorney can be invaluable as a mediator. Exposure to the “real world,” including petty criminals, substance abusers, violent felons, sophisticated and educated white collar crooks, and sociopaths of all stripes and walks of life, can provide the mediator with the ability to reliably evaluate the truthfulness and underlying motivation of a litigant.   Mediators without this exposure, who have had only civil law experience, often are at a decided disadvantage. Many of the same human motivations (fabrication/ lying, cheating, substance abuse, greed, lack of ethics, rationalization, etc.) exist in litigants who have no prior criminal records, as in those who do. An expensive suit, white collar and tie, extensive vocabulary, or a polished demeanor, is not a guarantee of credibility or honesty.

Sociopaths

Martha Stout, Ph.D., is a psychologist and member of the Harvard Medical faculty. For decades, she has specialized in the treatment of sociopaths and their victims. In her eye-opening book, The Sociopath Next Door, she states that four percent of the general population is sociopaths, i.e., one in 25 people. Her research shows that your doctor, plumber, judge, teacher, psychiatrist, spouse, friend, or next-door neighbor (hence, the title of her book) may be a sociopath without your knowledge. Only a small percentage of them are criminals, yet with their inability to empathize, they go through life creating damage and chaos without conscience, or ever feeling they have done anything wrong.

A mediator who has dealt with all types of people, and recognizes and understands them is in a position of advantage in strategizing how to move the parties in a dispute to a settlement agreement.

Trial and error

There are certain things that are not fully ascertainable prior to dealing with a mediator you have not used before. Therefore, even though you have gained a large amount of background information about a potential mediator, you may have to use that person at least once to learn how capable they really are.

For instance, counsel should endeavor to select a mediator with whom you can establish a good rapport. If you have had other professional contact or dealings with the proposed mediator and found those experiences to be productive and cordial that would be a sound reason to select that person, if otherwise qualified. Often, you have not had dealings with a proposed mediator, so you cannot determine whether their personality and approach to mediation is a good match for yours.

If your background check of the candidate has proven to be positive, you may have to agree to use her or him in order to see if a working rapport can be established. It is impossible to know how you will get along if you have never dealt with a proposed mediator, so you may have to determine that during your first mediation with him or her. Then you will be able to decide if you desire to work with that mediator again.

Insist on a good communicator

Also, you should never employ a mediator who gives opinions regarding the factual and legal issues of the case without thoroughly explaining the basis and reasoning for the opinion. A mediator’s role is to educate all parties regarding the reasons why they should compromise their position in order to resolve the case without further litigation.

When that has been done, counsel and the parties are in a well-informed position to act in their best interests. Without that, the mediator has not fulfilled his or her duties and responsibilities. Sadly, often you cannot determine whether the mediator is up to the task, without using her or him at least once.

Resources for investigating a potential mediator

Now that you know what to seek in a mediator, where can you find the necessary information about the person you are considering to mediate your case?

• Google and internet

Googling the person can be helpful in obtaining a general professional biography of the candidate. If they work with a dispute resolution company, checking the company website, or their personal website, can be a starting point, as long as you are aware that the information is advertising in nature.

• Print media

The Los Angeles Daily Journal legal newspaper does extensive biographical profiles of all judicial officers sitting in Southern and Northern California, as do most similar legal publications in other states. Those are usually archived, and can be accessed over the internet, to view the profiles of retired judges.

Similarly, articles concerning attorneys who have achieved notoriety, either positive or negative, may be found on the same sites.

• Reputation

First and foremost, reputation in the legal community is the most helpful and reliable source for determining the qualifications, competency and success rate of a mediator. Consult colleagues who handle cases similar to yours, regarding mediators they frequently use and why they do so. Ask as many other attorneys as you can. If you have a certain mediator in mind, ask specifically about him or her.

If several attorneys recommend the same mediator, you can probably rely on their opinions.

• Bar associations

Most attorney associations have confidential ListServ computer sites available to their members that provide commentary, both complimentary and critical, by their members regarding mediators and arbitrators, as well as sitting judges. If you see the same mediator’s name appearing numerous times, you can rest assured that the comments, if similar, are probably correct.

• Personal interviews

Counsel should not hesitate to make ex parte contact with a mediator you are considering (never with an arbitrator) to discuss the issues of concern to you in the matter to be mediated, as well as his or her background and experience. The mediator should candidly discuss the case with you, and may even decline the case for explained reasons. If the mediator will not speak with you, you may want to use someone else.

Final mediator selection

Once you have made an exhaustive investigation, you can feel confident that you are making an educated choice and that there is little else you can do. At that point make your selection, and if the other side agrees, you have maximized the likelihood of a successful mediated settlement of your case, and may have found a mediator who is a keeper for other cases.

In the unlikely event it turns out to be a distasteful experience, there is an implied warranty in every mediation: you never have to use that mediator again!

II. Selecting a competent arbitrator

The selection of an arbitrator demands an even more intensified investigation than for a mediator. In a binding arbitration, the arbitrator decides the final outcome in the case as to all issues and the award is permanent. Grounds for appeal are extremely limited by law in arbitrated cases, in comparison to trials held in the public courts. Thus, selection of a competent arbitrator is crucial.

The main difference in selecting an arbitrator versus a mediator is the goal of counsel. As explained above, you want to choose a mediator who is absolutely neutral and unbiased towards all parties to the action. An arbitrator is also generically called a “neutral.” In theory, that is what is required by law and ethics and taught in law school.

Almost every experienced trial attorney and judge knows, that in reality, an attorney’s true objective in the selection process is to ferret out and eliminate an arbitrator (or juror in voir dire) who may be biased against their side of the case, and at the same time hoping that the arbitrator (or juror) who is accepted will have pre-existing views sympathetic to their client. That is why selection of an arbitrator is so critical, just as it is with a juror or trial judge, only more so. At least if you are disappointed in a trial, you have the right to appeal for a wide range of reasons. In a binding arbitration, the statutory grounds for appeal are presently, extremely limited.

Arbitration bias

It may sound heretical or bold to discuss the issues of bias affecting our judicial system, but for a trial attorney to ignore these realistic considerations of the potential of a prejudiced arbitrator, juror or judge, would be foolish at best, and malpractice at worst.

If one is doubtful of the problem, corroboration may be found at the top of our judicial system in the selection process for United States Supreme Court justices. Any well informed person is aware, that justices are nominated by the President because of their pre-existing philosophical or political bent, as revealed in their prior professional judicial rulings or legal activities. The objective being, that during their lifetime tenured Supreme Court appointments, they will interpret the law in a manner consistent with the views of the President who appointed them, long after the President has left office. The congressional hearings and approval process of the nominees are also usually blatantly politically motivated.

Arbitration panels

More cogently, many financially able parties in arbitrations involving large amounts of damages, or issues affecting large business interests, demand a three-arbitrator panel to hear the case. If arbitrators are strictly “neutral,” why are these panels selected by each side choosing an arbitrator, and those two arbitrators choosing the third arbitrator? Obviously, it is recognized that each party will try to select an arbitrator who will be more receptive to their contentions in the matter (hardly neutral), and those two arbitrators will then be able to choose the third, possibly tie-breaking, arbitrator, who will be the one who is as neutral as possible. Due to the extraordinary cost of a three-arbitrator panel, most parties hire only one arbitrator. It is foolhardy not to thoroughly investigate how that person thinks based on their past professional conduct.

It is impossible for a human being to be without biases or prejudices based upon their previous life experiences. It is naïve to believe otherwise. The mark of a truly competent judge, arbitrator or mediator, is for them to be aware of their biases and to not let them intrude into their decisions when acting in their professional capacity. Being human, some come up short. It is counsel’s difficult task to weed out in advance those who might put their client at risk.

Arbitration demands different talents

To begin selecting an excellent arbitrator, the process discussed in Part One, for choosing a mediator should be done. At least you will have narrowed down the field. Be aware, that just because a neutral you have used is adept at mediation, does not mean she or he will be a competent arbitrator, who must actually decide the conflicting issues of law and fact in a case. That requires a whole different skill set. A mediator may be outstanding at communicating with, analyzing and convincing parties to compromise and settle their case, but not have the academic or intellectual acumen or trial experience to decide complex factual and legal issues in an arbitration.

Conversely, one may be an excellent arbitrator, but deficient as a mediator. Many legal and judicial scholars do not have the “people skills” to consistently resolve cases, but are top notch at trying and deciding difficult factual and legal issues. This is not in derogation of either person, merely a recognition that people have different aptitudes, talents and experience. One wouldn’t retain an intellectual property attorney to represent them in a murder trial.

Essential considerations

Just as in choosing a trial judge, the legal training and main area of practice of an arbitrator become very important. Contrary to a mediator, an arbitrator must have a thorough grounding in the subject matter at hand, especially if it is a highly specialized area of law. Often, the organizational and computer skills of the arbitrator should be determined, when the arbitration will be protracted with voluminous exhibits, as is true with most large commercial construction, class action, and other cases.

Dedicated availability

If your matter is lengthy and demanding, counsel should consider the availability of the arbitrator to dedicate all efforts to the case without undue distraction from other professional commitments. A prospective arbitrator who has other arbitrations in the works, or who is also a mediator, practicing attorney, judicial referee, assigned retired judge, or has a planned lengthy vacation, may not have the time to give your case the required attention. Inquiries in that regard should be made to the agency or person who books the arbitrator. It may not be a problem in a short matter, but very much so in a lengthy case.

If your case involves several days of hearings, you want to be certain that you can have consecutive days, followed by an immediate preparation of the award. Even with a court reporter memorializing the hearing, and a transcript made available to the arbitrator, a diligent award is preferable, while the matter is still fresh in the arbitrator’s mind.

Arbitrator’s award history

Seeking out prior arbitration awards made in similar cases by the arbitrator being considered is difficult, but worth the effort. The confidential ListServ websites of most trial attorney organizations should have relevant information and attorney opinions regarding particular arbitrators’ past conduct, rulings and awards.

Diligence of arbitrator

One very important issue, frequently overlooked by counsel, is the thoroughness and diligence the proposed arbitrator uses in making awards. Technically, absent a pre-existing stipulation with the parties, the arbitrator may issue an award of damages without explanation. Some arbitrators will do that, or with just a brief finding. Usually, that is done in shorter, simple matters. However, if counsel desires a fully explained decision including all findings of fact and law, that should be agreed upon with the arbitrator in advance. Not all arbitrators will agree to do that.

Even if it is so agreed, counsel should inquire of others who have used the same arbitrator, as to how long it took for the award to be written and served on the parties. Periodically, parties mutually complain about the length of time taken by the arbitrator to render an award. Often, the delay is caused by other work or personal commitments. If the prospective arbitrator has a history of delays and dilatoriness, you may want to look elsewhere.

Fees

Further inquiry of others who have used the arbitrator should be made into the billing practices of the arbitrator. Is her or his billing consistent with the amount of time expected by counsel for the hearing and award to be concluded, or was it excessive?

Pre-arbitration conflict of interest disclosures

Once you have narrowed down your list of potential acceptable arbitrators, it is imperative to examine which one is best suited to the issues in your instant case, as well as what prior dealings the arbitrator being considered has had with opposing counsel’s firm or parties. This is done by scrupulously reviewing the arbitrator’s statutorily required disclosure statement. The statement will set forth all prior arbitrations and other dealings that arbitrator has had with each counsel, law firm, or party in the pending arbitration. You can easily tell if there is a significant potential conflict of interest or even the appearance of a conflict. In either event, that arbitrator should have disqualified herself or himself from your case. If not, you obviously should retain someone else. Just because you have not accepted that arbitrator for that case, does not mean the arbitrator would not be excellent for another one where no such conflict exists.

List of acceptable arbitrators

After both sides to an arbitration have done their due diligence, they will compile and exchange their list of acceptable arbitrators. After each has reviewed and vetted the opposition’s list, it is likely that an agreement on an arbitrator who is both competent and fair as possible will be made, especially if the same name appears on each attorney’s list.

Highly skilled and competent arbitrators abound. The difficulty is locating them among those who are not.

An excellent alternative to trial

This discussion is not intended to frighten you about arbitrating your cases. While it is always better to mediate and settle your case, arbitration is an excellent alternative to trial in the public court system. Whether it is required by contractual agreement, or is a voluntary choice of the parties, arbitration is more expeditious, accommodating to the parties scheduling and venue demands, less costly, more informal and convenient than trial.