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Strategic Considerations in Selection of Employment Mediators: A Practical Guide for Advocates

By Dick Fincher

Are all employment mediators alike? How important is a mediator's career background and experience? Is there really a difference? These are the questions being increasingly asked across the nation by plaintiff and defense attorneys.

The mediation of employment disputes has exploded over the past few years. Mediators are being asked to perform a variety of complex tasks, including simple reality testing, exploring settlement options, and confronting barriers to the existing negotiations. However, most mediators are still being selected from a small list of known players without extensive reflection.

No one profile fits all disputes. How does the advocate know whom to choose? Do retired judges make good mediators? Do active plaintiff attorneys prove most persuasive? Are non-attorneys better for some cases? Success of the mediation process requires the effective matching of the mediator to the needs of the dispute. This article provides several perspectives on how to maximize your outcome by selecting the "optimal" mediator.

Step One: Case Evaluation
The first step in selecting the optimal mediator is to fully understand your employment dispute. Are the facts clear, or is more discovery needed? What are your client's goals? As plaintiff counsel, does your client simply seek monetary damages, or is publicity, vengeance, or an apology also being sought? As defense counsel, does the defendant desire to settle quickly to avoid publicity and minimize cost? Does the defendant desire to send a clear message and to avoid a precedent? Is the law clear on the issues?

There are different type of employment cases that could require different mediators. On one end of the spectrum are in-house relational disputes between executives. Then there are internal system mediations (such as Postal Redress) and EEOC administrative law disputes. On the other end of the spectrum are cases arising from demand letters, and ultimately issues leading to state or federal litigation.

Why hasn't the case settled already?
A critical step is to examine why the case has not yet settled. What course have the negotiations followed? Is the case not settling because of disagreement over the facts, interpretation of the law, expectations of the plaintiff, emotional issues, or influence of a third-party? What are the key barriers to moving ahead? The answers may not be crystal clear. The advocate's objective understanding of the current impediments to settlement is the foundation to selecting the optimal mediator.

Bottom line, do you understand the case enough to determine a settlement value and the existing barriers to settlement? If not, continue discovery. If so, then consider mediation.

Step Two: Deciding to Mediate
The second step is deciding whether to mediate at this time or proceed to trial. The classic reasons to mediate an employment case include a quicker resolution, confidentiality, flexible remedies, reduced litigation fees, and the chance to preserve relationships. The classic reasons not to mediate include when you can't act in good faith, when there is an overwhelming need for precedent, or if the instant case is tied to another issue not in negotiations.

Of course, all litigation will be mediated sometime, even if it is in a pre-trial settlement conference by the judge. In the past five years, the vast majority of employment cases are being mediated early in the life of the case, normally before the conclusion of discovery.

Step Three: Recognizing the Range of Selection Criteria
The third step in selecting the optimal mediator is understanding "what there is to choose from" concerning mediator skills and styles. Does this case require a mediator with strong substantive knowledge of the law, or considerable mediation process skills, or both? Are the parties still negotiating from positions or underlying interests? Is there still a need for venting and channeling of anger? Most advocates desire a mediator with strong subject matter expertise in employment discrimination, but the mediator's process skills and empathy may be more effective in a case dealing with reinstatement or anger.

Is career background important?
Another threshold question is the career background of the mediator. Does this case best fit: a) a full-time non-attorney mediator, b) a full-time attorney-mediator, c) a retired judge, d) a federal magistrate (at no fee) or e) a part-time mediator who is currently an active plaintiff/employment attorney. There is no one answer. While the mediator's career sets a foundation for his/her capability, most parties are better off valuing experience and style.

How effective are retired judges as mediators?
In the past few years, retired state and federal judges have become major players in ADR. The American Arbitration Association (AAA) has a judicial panel, and retired judges founded the Judicial Mediation Services (JAMS). However, parties continue to debate the pros and cons, and the traditional perception is that judges make good arbitrators and poor mediators. Of course, the truth depends on the case and the person. Some judges are exceptional mediators. The common reasons for selecting a retired judge as a mediator include prestige, strong evaluative skills, substantive knowledge, and a persuasive style. Some parties, often executives, can be very influenced by a retired judge. The common reasons against selecting a retired judge as a mediator include an over-reliance on evaluation, a under reliance on facilitation, little empathy, and a settlement conference mentality.

Which mediator style is required for this case?
There are a variety of mediator styles used in employment disputes. The four core approaches used in mediations are facilitative, evaluative, transformative, and settlement conference. Facilitative mediation focuses on underlying interests and searches for common desires between the parties. Facilitative mediation allows the parties to craft their own solutions, often beyond the boundaries of the lawsuit. Evaluative mediation focuses on assessing the case and questioning the expectations of litigation. Evaluative mediation focuses the parties more on the legal outcome and less on creative options. Transformative mediation focuses on the relationship and empowering the parties to become more self-sufficient in the future. Settlement conference mediation typically pressures the parties to settle by outright predicting outcomes of litigation. In reality, most effective mediators use a combination of these styles to achieve their settlements, but a few mediators stick to one predominant style. It is common for advocates to place too much reliance on substantive expertise and to undervalue the facilitative expertise of the mediator.

How important is creativity in employment mediation?
In the settlement of employee litigation, there is often a need for creative problem solving that requires the mediator to possess an extensive knowledge of corporate human resource strategy, employee benefits, succession planning, stock option policy, annuities, tax treatment, and ERISA obligations. For example, the topic of stock options requires extensive knowledge of vesting, qualified vs. incentive stock options (ISO), forfeiture, accelerated vesting, Black-Scholes formula, and change of control provisions. Most commercial mediators or retired judges do not have this breadth of knowledge. If your case will require these creative options, select a mediator with substantive skills in human resources.

Step Four: Developing Your Short List of Mediators
Most advocates select their mediators from personal experience or from a short list of recommendations provided by peers. Plaintiff employment attorneys have local chapters of the National Employment Lawyers Association (NELA) to exchange opinions. Management attorneys have their own networks. Some law firms now use a website to track their experience with each mediator. While this informal system reduces the risk of a poor experience, it may prevent you from selecting that emerging mediator with that "ideal fit" for your case.

Should you ever select an emerging mediator?
An emerging mediator is relatively new to the ADR profession and has yet to establish a clear history of competence in the community. This person may be highly skilled and performing hundreds of court-referred pro-bono mediations per year, but still does yet have the track record of instant respect. Most practicing attorneys are reluctant to select mediators new to the game. The emerging neutrals will be selected for the less important cases, or when the parties desire a quick availability.

What if opposing counsel suggests the mediator?
In the past, it was the kiss of death for one side to suggest the neutral. The opponent would automatically reject the suggestion. Today, most advocates calmly request the mediator's resume and consider the suggestion consistent with their needs. Many attorneys will propose two different names to minimize any thought of bias toward one mediator. An expedited joint selection builds trust and establishes a cooperative spirit that will follow into the mediation process.

Step Five: Conducting Final Due Diligence of Mediators
Once you have culled the list of names to a small pool, how do you examine each mediator's qualifications against the desired profile? Of course, the selection is not a unilateral act by one side. Some advocates actually interview the mediator and probe with a series of questions. Other advocates will never interview the mediator, but instead contact references and rely on other's opinions.

Be careful about mediators who advertise a high settlement rate. Most professionally mediated cases settle anyway, but settlement rates are not very helpful in determining the right profile of mediator for your case. Instead, the criteria in selection should include meditative style, quality, and creativity.

Should your client participate in the selection process?
In the past, including your client in the review of resumes and selection of a mediator was strictly an afterthought. Today, most advocates would agree to include their client, particularly in reviewing the final candidate. Client participation empowers the client to own the process and builds trust in the process and the attorney-client relationship.

Step Six: Actually Selecting the Mediator
By this time, the plaintiff advocate has a few final preferences, and the defense advocate also has a few final preferences. How is the one mediator selected? The three most common ways to select the final mediator is to negotiate the choices with your opponent, to strike from a list, or to ask an ADR agency to appoint a mediator. Most ADR administrative agencies that have submitted a list of names will ask the parties to use the striking method.

Should the Employer Pay the Mediator Fees?
In the past, plaintiff's counsel did not ordinarily request that the employer pay the mediator's fee, because it raised the supposed potential for bias by the mediator. Today, it is a common request by the party (the plaintiff) with apparently less deep pockets.

Some employers absolutely refuse to pay any of the plaintiff's fees for mediation, and instead force the costs to be split 50/50. The resolution is often for the employer to agree to pay the first day, or the first few hours. Savvy defense counsel often agree to pay the first day of mediator fees because the case will typically settle in one day, and even if it doesn't settle, they recognize that the first day of mediation provides critical insights into the case.

Step Seven: Contacting the Mediator
The selection process is almost complete. Once the final mediator is decided upon, one of the parties (or the ADR provider) will contact the mediator and request information on conflicts, availability, facilities, fees, retainer, and other issues. You also ask if the mediator will be requesting a pre-mediation brief.

Step Eight: Conducting a Post-Mediation Assessment
Each employment mediation requires a substantive debrief by the advocate. Did the case settle; Why or why not? What were the observed strengths, creativity, perseverance, and overall effectiveness of the mediator? Did the mediator use a more evaluative or facilitative style? Did the mediator demonstrate command of impasse techniques? Did he/she jump too quickly to strong evaluation? What kinds of disputes should this mediator be used for in the future? Does the mediator demonstrate empathy? What kind of cases should not be referred to this particular mediator in the future?

Mediators in employment litigation have risen to a position of clear value to the settlement process. However, the process of selecting the mediators remains undisciplined. Most advocates continue to select mediators from a short list of previously known neutrals, and rarely select an emerging mediator.

First, you must fully understand your case and why it has not already settled. Second, you must recognize what mediator traits are needed to settle the dispute. There is no one optimal profile. If the case involves a continuing relationship, or probable reinstatement, perhaps a facilitative mediator is preferred. But if the case contemplates no ongoing relationship and rests on the law, with a large demand for damages, perhaps an evaluative mediator is preferred. Third, you must develop your short list of names, consider emerging mediators, conduct due diligence, and finally select the mediator matched with the desired skills.

Within this disciplined and thoughtful framework, plaintiff and defense counsel should continue to receive real value and satisfaction in the mediation process.

The Author
Richard D. Fincher is a full-time mediator and arbitrator of commercial, employment, and class-action litigation. He is also the Managing Partner of Workplace Conflict Resolutions (WCR), a Phoenix-based ADR consulting practice. Dick is a frequent lecturer on ADR in employment class-action litigation, and employment dispute system design. He lectures extensively on employment ADR. He can be reached at 602-953-5322 or rdf@workplaceresolutions.com



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