Select Your Mediator

If you're a Practitioner in the Michigan Business Courts, you know that judges are expecting you to have your list of several acceptable mediators with you at the Initial Case Conference, with the expectation that the case may be suitable for Early Case mediation.   If your case is filed in Federal Court, your Rule 26(f) Conference report will require that you deal with the topic of suggested mediators.

If you're involved in a Pre-Litigation dispute, the following discussion will help all parties understand the important role of an assertive Neutral in keeping the negotiations on track without the normal structure associated with mediation in the litigation environment.

Based on over 1,000 Mediation cases, I've developed Best Practices that are summarized below:

  • I start the Process by meeting separately with each party, well before the formal mediation hearing. 

  • I treat this as a joint problem solving exercise.

  • I develop an Agenda of the topics and issues that will likely benefit from in depth discussion, and suggest a joint "working session" where I manage an informal, give and take in a conference room setting with the staffs of both parties.  These "working sessions" often produce further tasks and assignments to the parties as necessary to establish a foundation for substantive settlement discussions.

  • When the dispute involves complex technical issues or facts, I have had exceptional outcomes where the parties have agreed to jointly select an expert, agree on the scope of the investigation, and use the information "For Mediation Purposes Only".

  • I use Joint Sessions as much as possible.  If I can keep the parties talking to each other, even in the face of conflict and emotional tension, we can achieve extraordinary results.

  • Read More on my White Paper titled PreMediation.

Be Aware of Reactive Devaluation.  Whenever you take the initiative to suggest a Mediator for your case, you must overcome what's referred to as a "reactive devaluation" bias.  You're familiar with the exchange.  If you suggest the a name of a Mediator that the other side does not recognize, the other side is immediately suspicious, thinking if it's good for you, it must therefore be bad for them.  You've got some hidden agenda.  Even if you suggest my name, along with other Mediators, that  lack of familiarity  so often drives attorneys to settle on a Mediator that is based simply on who they know, or have heard of;  not necessarily the Mediator that has the best strategy and approach and proven experience for your particular situation. 

Awareness of the Reactive Devaluation is the first step in dealing with the response.  Here are some approaches that make the selection process more rational.

If we've worked together before.....

If I have worked with you previously as a Neutral, I'm honored if you include me among your list of preferred Mediators.

Based on our experience, if you believe my particular skills or subject matter qualifications would be the right fit for this dispute, I suggest that you take this initiative as soon as possible, but definitely before the Initial Case Conference.

  • Contact me first.  I have an extensive list of Case Studies that describe how I've addressed challenging situations and introduced creative techniques that lead to satisfying results.   I may already have prepared materials that could be useful for your present case, some of which are available in this website.   If you contact me, I may already have worked with opposing counsel, which may make the mediator recommendation a starting point for conversation.  Use the Contact Me function to get the process started.

  • Schedule an interview with me and your client.  If this is a significant matter, you know that I am always willing to meet with your client, as a way of an initial interview to get your client familiar with my philosophy on dispute resolution, and approach to the mediation process.  When this interview is completed, you will have a feel for the degree of trust and confidence that your client is likely to have in me as the mediator.  This is important to you and opposing counsel, whether you are plaintiff or defendant in the case.  If you case is strong, you want to make sure the mediator is able to balance risk and uncertainty along with overconfidence, in order to arrive at a settlement at mediation.  If the case is weak or if your client is the party expected to pay money, you want to make sure the mediator has the confidence and trust in the mediator necessary to bring the proper focus, acceptance and and exit strategy that will end the case. As i explain below, this initial interview is often done without charge. Take advantage of the offer.

  • Contact opposing counsel.  Start the discussion about how you can work together on an ADR plan, have a discussion on "Process", what your clients need, and then work on selecting the Mediator with the appropriate strengths. Emphasize that the selection of the Mediator must be mutually beneficial.  It's appropriate for you to make the argument that your suggestion can be mutually beneficial.

  • Take the Lead, be positive.  When you talk to opposing counsel, reference our positive experience, include the Case Study, if applicable, and suggest that your opposing counsel view my website to review my qualifications and experience.  This is the opportunity to expose opposing counsel to my approach, and make my selection something opposing counsel desires.  If we have completed an initial interview with your client, mention how important it is that the mediator has a positive relationship with your client, and how this relationship is beneficial to successfully resolving the dispute.  Some attorneys prefer to have a mediator that has the trust and confidence of the other side, in which case the mediation is off on a solid, positive foundation.

  • AAA Mediation.org Video.  The AAA.org website includes a brief video presentation of my approach to Best Practice in Mediation.  Consider forwarding this to opposing counsel, and suggest that his or her client review the brief video as a way to bring the principals into the Process at this early stage.

Logo AAAMediation-Org.JPG
  • Reference the extensive list of references for attorneys that have worked with me on Mediation and Arbitration engagements.

    • Auto Supplier Disputes

    • Construction Contract Disputes

    • Business Contract Disputes

    • Business Organization Disputes

    • Non-Compete, Breach of Confidentiality, Unfair Competition

  • Suggest that opposing counsel call me, for a conversation on my approach to mediation, and how I might be a suitable mediator for the case.

  • If you want me to send my website link to your opposing counsel, go to the Contact Form and I'll take care of the rest.

  • Thank you.

If we haven't worked together before.....

If we haven't worked together before, and you'd like to consider me as a Mediator, these are some suggestions that could lead to selecting the best fit Mediator for the case.

If you're committed to improving the  likelihood of achieving a satisfactory settlement to a business dispute, a better way to select a Mediator is to match the experience, skill and subject matter qualifications of the Mediator to the needs of the case. 

 

First, Triage your case. You're in the best position to understand what's needed to quickly and efficiently solve your client's dilemma.  Are you a candidate for Pre-Suit or Pre-Litigation Mediation.  Check out that section of my website and download my Protocol for Pre-Suit Mediation for Business, Technology and Construction disputes. The  White Paper section of this website includes a checklist of important factors that may influence your choice of "Process", and will certainly focus your attention to the necessary leadership qualities of your selected Mediator. 

 

If adopting an ADR track for you case is desirable, become an advocate to persuade your client and your opposing counsel to adopt this approach.  Reach out for the Mediator with the proper skills and strategies required to produce the best outcome. 

This website provides some of the background that attorneys need in order to assess my qualifications and style as a Mediator.  The White Paper section discussion on PreMediation illustrates the rationale and objectives that drive my use of the Pre-Hearing conferences.  I've also provided a Checklist of topics and issues to be addressed in Mediation, a list of references for varying types of matters that I've handled, and Case Studies that demonstrate my approach to different challenges. The AAA Mediation.org includes a brief video presentation of my approach to Best Practice in Mediation. This is less than 2 minutes in length, and will give you an accurate overview of my approach.  This is also a good way to get your client's input; make them owners of the Process.

I limit my practice to commercial and construction disputes because I have experience as a business executive and I understand the decision making and risk assessment process that motivates executives. I try to solve their problem with creative strategies that executives understand and appreciate.  I emphasize starting early, at the Pre-Litigation and Early Case stage,  when we have the flexibility to consider and deploy the use of the best strategies that produce the most satisfying outcomes, with less time and lower costs.

If you'd like to discuss how you can resolve Business Disputes using my approach to Pre-Litigation  or Early Case Mediation to your own client, or to opposing counsel, please forward them the link to this website, get in touch with be by phone to share your thoughts, or use the Contact Form that sends an immediate email to me. 

High Value, Complex and High Emotion Cases.....

For significant high value matters it is an accepted practice to interview prospective Neutrals to determine if their style or personalities are appropriate for the matter, and acceptable to the principals on both sides of the dispute.  I may be able to assist by meeting with each side for an "information meeting" for the purpose of answering questions and suggesting how the Pre-Litigation or Early Case Mediation model could work for their dispute.

 

This also gives the parties an opportunity to "interview" me as a possible Mediator for the engagement, to assess my problem solving approach to their case, and to accept my commitment to act as a creative, assertive Process leader to  guide them to a settlement.  

 

I've found that if both parties are confident with me as the Neutral, their commitment to the Process is significantly enhanced, thereby improving the likelihood of an acceptable settlement.  Clearly the effort involved in this approach is significant, but for appropriate matters, this  has the unparalleled opportunity to get principals committed to the Process. 

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© 2019 by Jerome F. Rock