Agnostic As To Who Is Right And Who Is Wrong: Impartiality And Other Qualities Of A Good Mediator

Sunday, August 1, 2004 - 01:00

While in New York City for a meeting of the Chief Litigation Counsel Association hosted by Martha E. Solinger, Managing Director and Co-Head of Global Litigation, Lehman Brothers Inc., Stuart Alderoty, Chief Litigation Counsel, American Express Company; Marc Gary, Vice President and Associate General Counsel, BellSouth Corporation; Joe Murillo, Associate General Counsel - Litigation, Philip Morris USA; Laura Schumacher, Vice President, Secretary, Deputy General Counsel, Abbott Laboratories; Jim Snyder, Vice President - Litigation, Home Depot, Inc.; Taysen Van Itallie, Associate General Counsel, Johnson & Johnson; and Bruce Whitney, Assistant General Counsel, Air Products and Chemicals, Inc. talked about their companies' innovative use of mediation with Deputy Editor Kristi Vaiden and Associate Editor George Miller.

Editor: Why is the process of selecting a mediator important?

Murillo:
The right mediator can work miracles in resolving a dispute, and the wrong mediator can create a terrible situation. You always want to select the mediator best suited for the circumstances.

Snyder: I agree with Joe. Selecting the right mediator is critical to the success of the mediation. As in many other cities, a handful of people come to mind when looking for a mediator in Atlanta. Often one of these people is acceptable to both sides. If not, selecting the right mediator can take some time.

Gary: One of the variables that can impact how long it takes to select the mediator is whether the agreement to mediate spells out the process for selecting the mediator. If the agreement is silent, the process of selecting the mediator can bog things down.

Whitney: When the mediation involves a consumer, the process for selecting the mediator is particularly important. For mediation to be palatable, the mediator must be someone the consumer will trust. The mediator's impartiality should never be an issue.

Editor: What are some of the characteristics of a good mediator?

Van Itallie:
To help ensure fairness in the mediation process, some corporate programs require the mediator to avoid communicating his or her own conclusions about what ought to be the outcome of the case. The role of such a mediator is only to assist the parties in negotiating a resolution; it is not to express the mediator's own resolution. By not siding with one side or the other, the mediator preserves the sense of fairness. This can be particularly important if a mediator receives repeat business from a particular entity, where maintaining a reputation for complete impartiality is essential.

Alderoty: That's right. When I was trained as a mediator, I learned that mediators need to remain completely agnostic as to who is right and who is wrong. The mediator's job is to help the parties find the root cause of their dispute and drive home the resolution they craft.

Schumacher: I also agree that the mediator must give a sense of fairness. Rather than making his or her own assessments, the mediator should assist and facilitate the parties in reaching their own conclusions. The dispute resolution clauses in our contracts require the parties to put forward their proposed resolution and the neutral picks one or the other. The neutral does not have the ability to split the baby. We structure our dispute resolution process that way because we have found that people often are more reasonable when they put in what they realistically want.

Gary: Finding a mediator with the right background can be critical. For example, we used mediation in one of our antitrust cases with very good results because we were able to bring in a mediator who has excellent credentials in the antitrust field. Not only was he a former attorney general, but also he taught antitrust law at a renowned antitrust law institute and specialized in mediating antitrust cases. When we gave the facts to the mediator, we presented our worst and the other side's best view. The mediator found no basis for a claim under any antitrust theory, and the other side amicably dropped it - in large part because of the mediator's acknowledged expertise.

Editor: Who are the best mediators?

Whitney:
The best mediators are insightful and persistent. If the parties do not at first reach a resolution, the mediator uses the break in negotiations for reflection and then comes back with the issues narrowed. When negotiations reopen, the mediator will focus on the areas of potential resolution.
The best mediators also create settlement events. Exercising their own initiative, they will find opportunities to ask the parties if they have been thinking about certain aspects of the case and then attempt to set the stage to help the parties come closer to resolution.

Van Itallie: I agree with that. We have had experiences with mediation where the mediator refused to let the chance of a settlement drop and worked at a potential resolution for weeks. After a failed session, it may be enormously effective for the mediator to go back and reopen areas for potential resolution after the parties have cooled off.

Alderoty: The best mediators do not find an unsuccessful mediation to be a failure. This came as a surprise to me. When I was in private practice, I was a court-approved mediator for the federal court in New Jersey. The judges would send cases to mediation, even if the answer had not been filed. I thought, "How could we possibly mediate a case without depositions and other discovery."
I was never able to settle any case I was assigned. After a year of this and feeling a miserable failure, I went to the judge who ran the mediation program and reported, "This is not working." The judge said, "Actually it is." The judge's statistics showed that within six months of mediation, more than 90 percent of the cases settled within a very close percentage of where mediation was leading the parties.
Throughout my career, I continue to see the psychological effect of mediation. Hearing a neutral put a number on a case, even if the number is rejected by one or both of the parties out of hand, can aid in resolution.

Editor: What are some of the resources available to help select a mediator?

Schumacher:
We have used the CPR Institute for Dispute Resolution's panel of neutrals, which is organized by subject matter expertise.

Whitney: We also have proposed neutrals from the CPR panel, particularly on sophisticated matters. When the other side proposes a neutral from the CPR panel, we tend to reach consensus quickly Ñ even if the neutral chosen by the other side may not have been my first choice.

Ben Picker of Stradley Ronon has been a wonderful resource for helping to identify mediators around the country. I also call him my process coach. When the other side is balking, I tell him about what stage the dispute is in and ask for suggestions about what can be done to help the other side entertain the mediation process.

Murillo: Courts sometimes assign mediators. Having a mediator who is someone familiar to the judge can be helpful, but it also can be a distraction. Results can be spotty.

Snyder: When judges assign particular mediators from a group they often use, many times their background will not be in the area of expertise related to the case. On the other hand, they can sometimes be effective because they know the local rules and the judges' style, which helps to move along the case.

Gary: Some judges will ask another judge on that court or a magistrate to mediate. I had a very positive experience in the Delaware Chancery Court. I was very impressed with the diligence and insightfulness of the judge assigned to mediate our case. He was very effective in helping the parties to narrow our issues.

Editor: What practical tips do you have for determining if a mediator recommended by someone else is the right mediator for you?

Alderoty:
While recommendations come to us from many sources, there is probably no single "best" source for finding mediators. It's best if counsel has already had experience with the mediator. If not, heavy due diligence is needed. Work the phones and talk with as many colleagues as you can. You cannot get too much background information about a mediator.

Van Itallie: Stu's right. Credentials are of limited value; you want to learn first hand whether a candidate has the personality traits and work ethic needed. Inviting the other side to participate in an interview with the candidates can help ensure that everyone is comfortable with the choice of mediator. During the interview, look for energy, drive, and a willingness to do what is needed to explore every avenue for resolution. The bottom line is that you want a hard worker.

Editor: How important is it for the other side to feel comfortable with the mediator?

Alderoty:
Very. We once retained a retired judge from Kentucky as mediator in a very complex multi-party dispute pending in Kentucky. She was immediately accepted by the other side and helped us to quickly move towards resolution of the dispute.

Whitney: To help both sides feel comfortable with the selection of the mediator, we sometimes look for an executive from our industry.

Snyder: We also look for a mediator whom the other side will readily accept. For example, we've sometimes used members of the plaintiff's bar in personal injury cases.

Editor: Why is the right training as important as the right mediator with the necessary experience?

Van Itallie:
It is stunning to find during a training exercise that outcomes can be dramatically different depending on the techniques that the mediator used. It illustrates the importance of having a mediator use the appropriate technique.

Snyder: I agree with Taysen; the right training is critical. Litigation attorneys are trained in the art of litigation preparation and trial techniques. They typically do not go to formal training on mediation. This raises the question of whether it is necessary to have separate counsel representing the company in mediation.

Gary: In some circumstances, training should include a "train the trainer" element. We have found, for example, that mediation counsel, separate from the litigation team, can add value when the judge is not well trained in mediation and is becoming frustrated. It can be very successful for the mediation counsel to take the judge aside and provide practical pointers on mediation techniques.