The range of types of mediations and mediator styles is broad indeed. Not all cases demand the same style or format. It is important that you select the right mediator for each case. In learning about your prospective mediators, consider these issues.
- Do you want a joint session? Discuss with your client the different employment mediation formats and which will best facilitate the desired result. For example, some mediators never allow the parties to see each other during the day unless and until the case is resolved. Other mediators believe that, except in the most unusual case, perhaps a case involving abusive sexual harassment, the parties should never be separated. How does your client feel about a confrontation with the other side? A former employee may be fearful of a confrontation with the former supervisor, but another may want to talk to the manager to describe what went wrong or how it felt to be terminated. Similarly, the employer representatives may be so angry they never want to see the employee again, but others may want to share with the complaining employee feelings of betrayal by the filing of the charge of discrimination. It is important for counsel to know how his or her client feels about this and discuss it with the mediator.
- Do you want to speak to the mediator about your case in advance? Some mediators do not talk to the parties until the date of the mediation. Others prefer to discuss with the parties and/or counsel the key issues in the case prior to the mediation date. These conferences can be helpful in preparing the parties to resolve their disputes. During this pre-mediation conference, e.g., the mediator may ask you to provide additional information depending on what the other side has confidentially shared. Questions may arise as to who should attend the mediation and whether your client has an opinion as to whether there is someone who must be present, or someone who should not be present. Any psychological or other barriers to settlement that you have observed can be shared with the mediator during this conference.
- Do you want an evaluative mediator? Some mediators are facilitative, that is they do not opine as to the merits of the case. Rather, they work the parties toward a consensus by focusing on the needs of the parties, not the issues in the case. Other mediators are evaluative, that is they have substantive expertise in the subject matter of the dispute, and review the factual and legal issues in the case. These mediators bring to bear their experience as to how the case may end if tried in court. In this way, evaluative mediators persuade the parties to compromise their positions to avoid the exposure and the risk of losing the case at trial. Knowing which type of mediator is best for the particular case will help you select the right mediator.
- If the case does not settle at mediation, will the mediator continue to work on it? Once the day of mediation is over, some mediators close the file and move on to the next matter. Others won’t accept defeat so easily. They offer to continue to work on the case by phone or email. They may help the parties create a “mediation discovery plan” so that the parties can obtain only that critical information needed to be in a better position for resolution. Be informed in advance as to which type of mediator you prefer.
Although all mediators must be objective, independent, and open to new or different situations, it is important that you think carefully about each case and select the mediator who best fits the needs of that situation.