Will Murphy

Most litigators have developed a process for making many of the decisions that come up regularly in lawsuits. If you are a litigator, you probably have templates for complaints and/or answers, for interrogatories and for common motions. You probably have questions you frequently ask in depositions. You have certain steps you take in preparing for trial.

Most cases settle before trial, and a great many of those are resolved in mediation. Mediation is far more art than science, and every mediator is different. Would your clients benefit if you had a framework guiding your thinking about which mediator to select for any case?

This article will offer such a framework. You may choose to apply it when considering any particular mediator for a case.

Begin with the general considerations that apply to any case and any potential mediator.

Step 1 – Character and ethics. If you or your client don’t trust the prospective mediator, that is a nonstarter. You know that a distinguishing characteristic of mediation is confidentiality. A big reason for this is to remove disincentives to sharing information and to making a real effort to compromise and reach a settlement. If you and your client aren’t confident that information you share in a caucus won’t go outside that caucus without your consent, you aren’t going to be willing to do it. And that’s an extra impediment to resolution. You should make good character and ethics a precondition to selection of any mediator.

Step 2 – General Mediation Skills. Is the mediator able to communicate clearly and precisely? Does she see things from multiple angles? Does she keep working toward a settlement without giving up too easily? Can she come up with creative solutions? Not every case lends itself to a “win-win” resolution, but sometimes a good mediator can see a resolution that is better than simply approaching the matter as a zero- sum game in which every dollar or other unit of value that one party gains is offset by an equal loss by another.

Step 3 – Geography. Is the mediator’s office in a reasonably convenient location? If not, will he travel to another location for the mediation? (Alternatively, is it reasonable to have one or more parties attend by video or phone?) Of course, if the amount in controversy is quite high, then this consideration may become less important but it is still a factor.

Step 4 – Economics. You will need to know more than just the hourly rate the mediator charges (but you will need to know that). Does she charge for time spent on scheduling? Does she charge for travel time? Does she charge for time spent on preparation? What is her cancellation policy? Does she have a minimum charge? Perhaps most importantly, does she milk the case, dragging out the mediation session(s) simply to generate more fees? Note that this is far more costly than simply charging a higher hourly rate. Now your time and the time of your client are being taken beyond the point needed to try to resolve the matter.

If a given mediator meets all of the general criteria above, it is time to consider whether the mediator is a good fit for this particular case.

Step 5 – The right tool set for the job. Before proceeding to the other steps, identify what is likely to be the biggest roadblock to settlement. Sometimes your sense is that the other party wants to settle but her counsel does not. Sometimes your sense is the other attorney wants to settle but his client doesn’t see the value in a voluntary resolution, or wants a pound of flesh, or has unrealistic ideas about the possible outcomes at trial. If the problem is that the other party doesn’t believe his case has weaknesses, will it be particularly persuasive to hear those weaknesses from a former judge? Is there a mediator whose personality you think will appeal to the person who just needs to move past the quest for revenge? Would a soft touch be better than someone who will turn up the pressure? Keep in mind the main impediments as you consider the remaining steps. (Bonus tip: if you are casting your attention about, looking for the biggest impediment, consider that it could be . . . you.)

Step 6 – Linguistic and/or cultural fluency. Are any of the decision makers from a culture other than the one from which the rest of the participants come? Would it be helpful if the mediator had an understanding of that culture or of a second language?

Step 7 – Subject matter expertise. Does the case involve unusual or complicated legal issues? If so, to what extent might it be helpful if the mediator had a handle on that area of law at the outset? (See Step 2 – I
would never recommend you take a generally weaker mediator to get a subject-matter expert. A good mediator can resolve a dispute that is outside her expertise if the lawyers know what the issues are. However, if you have a choice between two mediators whose general skill sets for dispute resolution are similar, you might want to select the one that already understands the relevant area of law.)

About the Author
Will Murphy graduated from William & Mary’s law school, and then clerked for the Honorable Pamela B. Minzner of New Mexico. He has litigated in South Florida for over 25 years. He has been a certified mediator since 1995, and is now certified in circuit civil, family, county court and appellate mediation. He is also a qualified arbitrator for state court arbitrations, and a frequent arbitrator for FINRA. He can be reached at 954 922 3388 or When he is not mediating or arbitrating, he coaches the Blazing Paddles dragon boat racing team.

© 2019 Will Murphy