IT'S NOT AS SIMPLE AS IT SEEMS
The great variety in the mediator community in the Bay Area and northern California mirrors the legal marketplace mediators serve. Just as there are specialists in large law firms or in boutique practices, mediators also specialize their focus and bring diverse backgrounds whether as part of large provider groups or in solo practice. The day is long gone when the ranks of mediators were largely populated by a few retired judges and pioneer lawyer-mediators who were generalists in dispute resolution.
While many applaud this multiplicity of mediator choices, for some lawyers and their clients, this can present a bewildering prospect. Even for the experienced litigator with his or her short list of favorite mediators, when that list doesn’t work due to an objection from an opponent or mediator availability, a search may still become necessary. And, while many lawyers in law firms routinely circulate email seeking comment on or suggestions for a potential mediator, this process can be haphazard at best. This article offers a modest overview of many of the options now available for selecting a mediator and some important issues to be considered.
LOCATION, LOCATION, LOCATION
Geography can be a key early driver in the selection process for a number of reasons. Perhaps the parties want a mediator who is closely connected to the local legal community because courthouse knowledge may be a key aspect in resolving the dispute. Sometimes travel concerns for out-of-town counsel and clients, especially if multiple client representatives or multiple parties need to attend, become the key factor. Often, the parties may prefer to mediate with a mediator not located in the jurisdiction and not connected to the local legal community, which might be a better choice than one located in the venue of the action to provide some greater sense of neutrality.
A "ROBE" OR NOT?
Counsel often prefer a mediator who is a retired judge, affectionately known as “a robe,” not just because of his or her individual mediation skills or experience but because the particular mediation may require someone with at least the patina of authority, even as a retired bench officer, to deal with contentious counsel and parties. Sometimes, if the outcome of a case may be closely tied to the venue, a retired judge from that community can add valuable insight in potential bench or jury reaction to the facts of the case. Other times, an experienced mediator who is not a retired judge but who has recent, extensive litigation or other specialized experience may be preferred for a given dispute. The parties may also want to seek a more creative solution to their dispute that a monetary settlement alone won’t provide from a traditional judicial settlement conference approach.