First moves matter. A mediator’s strategic choices during the initial contact can encourage the next steps that will produce a successful mediation, or render mediation less likely or less productive.

Too often, a mediator receives a telephone call from a lawyer in a case, and without much thought, gathers the essential information needed for a conflict check and scheduling. Trained to listen, the mediator does so, as the lawyer recites his or her version of the case. A tentative date is set, or opposing counsel is contacted to select a date and work out document exchange.

Or a mediator may receive a call from a lawyer, “potentially” interested in mediating, or in selecting the mediator for a case destined for mediation. The lawyer poses questions about the mediator’s background and experience, and perhaps asks for a reference or two. The mediator answers the questions amicably and truthfully, and suggests to the lawyer, “Get back to me on the details” if he is selected.

Depending upon the mediator’s office set up, intake calls may be handled by administrative staff, who fax or E-mail the mediator’s resume and other information indicating areas of expertise; run conflicts checks; schedule mediation dates, and provide counsel with the mediator’s standard document submission or mediation statements requirements.

None of these responses to an initial contact is necessarily harmful, but they may cause the mediator to miss significant opportunities to enhance his or her effectiveness, the likelihood of selection as mediator, and achieving a successful resolution.