As I discussed in a previous blog (Mediation: What Is It and When Should It Be Utilized?), very few cases go to trial.
There has been a marked shift in the past twenty years to facilitate settlement through Alternative Dispute Resolution (ADR). Mediation or facilitation (used interchangeably here) is a non-binding form of ADR as opposed to arbitration, which is fully binding and case evaluation, which is quasi-binding.
Since so many cases are settled ahead of time or even referred to mediation, it is important for attorneys to investigate the background of mediators and select one who is qualified to handle the type of case being facilitated.
What kind of mediators are there? These are the typical varieties:
- The retired judge. Nearly every retired judge becomes a mediator and many of them are very effective. However, most of these mediators have not been formally trained – rather, they use their status as a retired judge to establish a rapport with the parties and coax them into settlement.
- Formally trained attorney mediators. Many attorneys have spent years refining the art of facilitation. They have likely gone through the training offered by the American Arbitration Association or ICLE and possess certifications from these organizations.
- Untrained but experienced attorney mediators. Many of these mediators are very effective, especially if they are practitioners in the area of law that the case involves. For example, construction lien cases involve very unique issues of mortgage and lien priority which are implicated by extensive statutory and common law. Only certain mediators are qualified to handle complex construction lien cases and many of them are neither former judges nor certified by an association.
How much do mediators cost?
Different mediators have different fees. Your costs will depend largely on the complexity of your case, the level of experience and knowledge that you believe a mediator will need to have, and how lengthy the mediation will be.
You will likely not need a powerhouse mediator that charges $400 per hour to settle your $15,000 District Court collection action. Rather, all you probably need to do is get the parties together in a couple of conference rooms and send numbers back and forth. There are plenty of inexpensive mediators that may not fall within the above categories but will serve the purpose of settling your smaller case.
A warning (from experience): Selecting the wrong type of mediator just to save a few bucks or for other less important reasons is a bad idea. If you agree to a mediator to help facilitate the resolution of a commercial contract dispute and you find an affordable mediator, but one who primarily has experience in personal injury law, the process may not be as effective or efficient and may actually cost you more money and time.
Typically during the status conference of a case, the judge will distribute a list of recommended mediators to the attorneys. When I receive this list, I sit down with the opposing counsel and identify three mediators that we both recognize and are willing to pursue. I then consult with other trusted attorneys to find out about their experiences with the identified mediators.
After I have properly researched and investigated the mediators, I meet with my client regarding the mediators’ fees and my recommendations.
Mediation is used so frequently that it is in everybody’s best interest to engage the right person to mediate your case, one who is fair, knowledgeable, and effective.
By Adam Kutinsky, Member, Dawda, Mann, Mulcahy & Sadler, PLC
