Mediation is an alternative to litigation, right? Right. So therefore the mediator should be a retired judge or an arbitrator, or at least a litigator-right? Not necessarily.

I don’t mean to minimize the usefulness of a litigation background for participants in the mediation process. But I do suggest that in certain cases the parties and their counsel ought to consider the desirability of selecting a non-litigating business lawyer as the mediator. (I first proposed this in an article called “The Neutral Negotiator-Why and How Mediation Can Work to Resolve Dollar Disputes,” (Prentice-Hall Law & Business 1994)(photo reprint on file with The Business Lawyer, University of Maryland School of Law).) Here’s why:

In my experience, the mediator of any thorny commercial dispute has to play an activist role.  The parties are about to go to war (or may already have done so) over issues on which their loudly trumpeted positions are worlds apart. Mere facilitation isn’t going to bring them around. What they need is a cold splash of reality.  They have to be made to see the dispute, and their “winning” positions, through a pair of impartial eyes. And even then, they need plenty of help and lots of coaxing to make the painful moves needed to bridge that big gap.