Mediation Advocacy: Axioms for Avoiding an Impasse Chapter 24
Paul R. Fisher has been a mediator since 1985, and an arbitrator since 1978, focusing on construction, real estate, business, employment, and securities disputes. He heads his own Los Angeles firm, and serves on the CPR Construction, Employment and California panels, among other national panels, and is a frequent author and speaker on mediation. Judith Stalk assisted him in the preparation of this article.
Though there are many basic axioms required for a successful mediation, if an essential ingredient is forgotten, it can cause an impasse. This is a summary of the most critical elements necessary to avoid an impasse. Even though attorneys who have considerable mediation experience may be aware of the majority of these elements, focusing on the myriad of subtleties of the other elements discussed in this article will increase the likelihood of mediation success.
Choose the Right Mediator: Though some mediators believe they can mediate any dispute, most experienced counsel prefer a mediator who is eminently qualified in the dispute’s substantive issues.
Consider the mediator with the right temperament and mediation style, one who can deal with the personalities unique to the dispute. For example, the mediator likely would need to be adept in dealing with highly charged, emotional issues such as those arising in wrongful termination and harassment disputes. Or a mediator who is not intimidated by combative parties or attorneys.
Consider a mediator whom all the attorneys respect, especially when the mediator is called upon to express a confidential evaluation of the client’s case. Counsel may want to jointly interview prospective mediators in a telephone conference call.