Judith B. Ittig practices law in Washington, D.C. She is a mediator and arbitrator, serving on American Arbitration Association panels for construction, commercial and international cases. She also serves on the AAA’s Large, Complex Case Panel and the AAA’s National Master Construction Arbitrator Roster. She may be contacted at USBuildlaw@ittig-ittig.com. (This article is adapted from Mrs. Ittig’s presentation at an AAA national mediator conference.)
There are steps, sometimes overlooked by mediators and attorneys, that can be taken outside the mediation session to help ensure that a settlement is reached. By taking some or all of these steps, the parties, their advocates, and the mediator can make the mediation more likely to succeed.
PRE-MEDIATION:WHAT PARTIES AND COUNSEL CAN ACCOMPLISH WITH THE MEDIATOR
Step #1: Getting the Right Mediator
a. Interview the mediator
Counsel can and should interview prospective mediators. The AAA has a fine roster of neutrals who are highly qualified as mediators. Each possesses different skills and backgrounds.
Each side should determine what talents the mediator needs to have for their dispute. Technical knowledge? Legal experience? Financial expertise?
The AAA provides information to the parties about the mediator’s qualifications and experience. The interview, which can be done ex parte, is essential as it can also reveal a lot about the mediator’s style and approach.
During the interview, counsel should observe the mediator to see if he or she is a good listener. Does the mediator seem interested and enthusiastic? Does he or she inspire confidence?
Counsel should ask the mediator about his or her approach to mediation. Is the mediator willing to offer an evaluation and suggest possible settlement options if asked? The mediator can also be asked how he or she deals with displays of emotion during mediation?