It is undisputed that a mediator must be neutral and fair and be able to assist parties who are trying to reach a mutually agreeable solution. Within the realm of impeccably neutral and fair mediators, however, some mediators will inevitably be more or less effective at relating to the nuances of a particular party’s position. This disparity can be even more pronounced in international disputes, where the parties come from different cultures and legal systems, tipping the balance of bargaining power in favor of one party or another.
Mediators say that for a successful mediation (i.e., a mediation that will result in a settlement), all parties must come to the mediation interested in settling the dispute. Thus, it has become unseemly to speak in terms of “winning” a mediation, particularly when it comes to selecting a mediator since it could be viewed as surreptitiously stacking the deck in advance.
Realistically, however, clients want the best possible result, and it is the job of an advocate representing a client in a mediation to help secure that result. While looking for a mediator who is neutral and fair, both in fact and in the perception of the parties, should counsel select a mediator who may be favorably disposed to the client’s position? The fact remains that as between two equally acceptable mediators, one may be the more strategically beneficial choice.