The survey was distributed to the members of the American Bar Association Forum on the Construction Industry, the largest organization of construction attorneys in the United States. The survey sought to identify the method and criteria used to select a mediator, preferred mediator styles, desirable mediator behaviors and how often mediators displayed them.

Six-hundred-and-seventy-two attorneys representing owners, subcontractors, suppliers and design professionals responded to the survey questionnaire. All had mediation experience as an attorney; most had participated in more than ten mediations and more than 120 had participated in over forty mediations. Collectively they participated in 10,581 to 15,540 mediation proceedings.

II. Mediator Selection

Nearly three-quarters of the respondents (72%) reported selecting the mediator by mutual agreement. The remainder used an ADR provider (21%) or some other method (7%).

Respondents ranked eight factors that most influenced their decision to choose a mediator from another region of the country. The results were contrary to the commonly held opinion that subject-matter expertise is less important than mediation experience. In fact, subject-matter expertise received the highest rank while mediation expertise was ranked third. Legal expertise ran a distant seventh.

When asked to choose between having a lay mediator or an attorney mediator where both had equal experience in mediation and in the field in dispute, 94% of respondents opted for the attorney. When the assumption changed so that both only had experience in mediation, the results were almost identical. The results changed only when the lay person, but not the attorney, had experience in the field of the dispute. In that scenario the lay person was preferred by more than 2:1; 69% favored the lay mediator while 30% opted for an attorney mediator with no knowledge of the subject matter.