In my experience as an advocate and now as a mediator, mediation normally results in settlement on the first day of mediation when the mediator is the right fit for the case. However, the best employment lawyers want more than that. They want a very favorable settlement, and they want it in all of their cases. As one plaintiff employment lawyer explained, “I want the mediator who can squeeze the big bucks out of the corporate sponge.”
So what do plaintiff and defense employment lawyers look for when selecting a mediator? Based on my discussion with 20 very experienced plaintiff and defense employment lawyers in Southern California, most look for these six qualities. “Someone opposing counsel and their client will listen to and be moved by.” Both plaintiff and defense counsel mentioned this factor first by a wide margin. As one plaintiff counsel said, “I don’t need the mediator to tell me how good or bad my case is. I want a mediator who defense counsel and their client will listen to and be moved by.”
As a result, most plaintiff counsel said they would normally agree to a mediator proposed by defense counsel as long as they were satisfied the proposed mediator would push the defense side as hard as the mediator pushed the plaintiff side.
Similarly, defense counsel want a mediator who can influence the plaintiff’s side through the mediator’s experience, preparation, and credibility. As one defense counsel explained, “I’m not looking for someone to influence me.” Thus, most defense counsel said they would agree to a mediator proposed by plaintiff’s counsel as long as they had confidence that the proposed mediator was experienced in employment law and would push both sides equally hard. However, for class actions , several defense counsel expressed a stronger need to have more confidence in the experience and even-handedness of the mediator before they would agree to that person.
“Someone experienced in employment law.” Mediator credibility greatly increases the chances for a successful mediation. The first way a mediator builds the requisite credibility is both counsel knowing that the mediator knows not simply ‘the law’ but has the experience in employment law that enables them to identify and credibly explain the real world risks to both parties of continuing with their dispute as opposed to settling it now.
As a result, most plaintiff counsel want a mediator with employment law experience, and preferred a former practicing employment law attorney instead of a judge because of the practicing attorney’s real world experience in dealing with the expected and unexpected ups and downs that plaintiffs and defendants experience during the litigation process.
By contrast, defense counsel rarely emphasized the importance of a mediator with employment law experience. Yet all of the names volunteered by defense counsel were mediators who were former practicing employment counsel and/or mediators who have a specialty in employment law cases. Defense counsel were also more likely to agree to a mediator proposed by plaintiff’s counsel if they knew the mediator had employment law experience.
“A credible evaluator rather than a messenger.” Both plaintiff and defense counsel want a mediator who will evaluate the factual and legal risks to both sides in a credible manner. Many used the ‘evaluator’ word : someone who understands the facts and law in the case from their employment law experience and their careful preparation for the case, and who will evaluate the case to both counsel in a credible manner that will push each side toward a realistic assessment of their case. In other words, having agreed to a mediator they believed would influence the other side, both plaintiff and defense counsel want someone who gives a credible evaluation to their side as well.
Differences arose, however, with regard to the ‘style’ with which the mediator conveyed the evaluation. Many preferred ‘pushy’ evaluators as long as they knew the mediator was even-handed. Others emphasized the importance of the timing and manner with which the evaluation was given, particularly when the mediator is conveying the evaluation to the plaintiff and to the decision-maker in individual cases, as opposed to class action cases. For example, one counsel wanted a mediator who was “able to communicate bad news without attacking or alienating my client.” Another said: “help me show my client we got as much as we could for their case.”
Thus, effective mediators often give their evaluation first to counsel outside the client’s presence, which gives counsel the opportunity to push back with whatever answers they have and/or assist in conveying the message to the client in the most effective manner.
This ‘style’ factor was often expressed as a mediator who ‘matches’ the key people involved in the mediation. For example, having an older mediator in a case with an older individual plaintiff or an older decision-maker was mentioned more than once as a factor that could increase the mediator’s credibility with the key party. Similarly, a ‘touchy-feely’ mediator may be perfect for some cases, but a complete turn-off with other plaintiffs and decision-makers. In addition, defense counsel do not like mediators who they perceive as simply ‘splitting the difference.’
Bottom line: both counsel want evaluators who will give a credible evaluation of the risks in a manner that matches the side to whom they are speaking. They don’t want ‘messengers.’
“Someone who is dogged.” The word ‘dogged’ seemed an unusual choice of words, but nearly half of the plaintiff’s counsel used it, and the others used comparable language – perhaps because ‘dogged’ is a characteristic that successful plaintiff’s counsel invariably share. They don’t give up, and they don’t want a mediator who does.
Interestingly, and without prompting, many defense counsel used the very same word. Indeed, ‘dogged’ was the second most mentioned factor by defense counsel, who want a mediator who reads the mediation briefs carefully, demonstrates a clear understanding of the key facts and law, can and will argue facts and law credibly and effectively with both sides, and does not give up.
“Someone who I know will push the other side as hard as they push me.” “Trust that the mediator will work as hard for the settlement I want as he does for the settlement the other side wants” is the way one counsel put it. As another said, I need to “trust that the mediator will help me get real value for a case that has real value.”
That ‘trust’ factor puts a premium on the integrity of the mediator. Does the mediator have a reputation for integrity and professionalism in the employment bar? Those who do will feel an obligation to work equally hard for both sides, and will do so.
“Someone who is creative.”
Most mediations reach a point where there appears to be an impasse now, or at least on the horizon. The best mediators gain both parties’ and their counsel’s confidence by listening fully and carefully, and then thinking of new solutions, new arguments, or new risks as a means of breaking or avoiding the impasse. Examples of creative ideas appear in the longer version of this article at www.pma-adr.com.
This creativity factor is particularly important in class actions , where the financial stakes are typically higher and settlement often more complicated. As a result, counsel “want someone who knows how to settle a class action case.”
Finally, many mediations end with a ‘mediator’s proposal,’ but that technique must be used with care, as a last resort after several other efforts have moved the parties closer together. Used prematurely, a mediator’s proposal may simply suggest too low or high an assessment of the case and thus impede settlement.
Some counsel could run off a list of what they were looking for. For others, it was more intuitive, almost as simple as “I’ll agree to whoever the defense wants as long as I know the person is experienced in employment law and will try as hard for my side as for the defense side.”
With both plaintiff and defense counsel saying their primary factor is a mediator who can and will influence the other party, one might conclude it would be difficult to agree to the same person. But their willingness in many cases to agree to a mediator that the other party proposes yields agreement as long as both parties have confidence that the chosen mediator will push both sides equally hard, using the other qualities summarized above.
The following plaintiff counsel were interviewed: William Crosby, Nathan Goldberg, Christopher Hayes, Mark Magarian, Vincent Nolan, Frank Pray, Neil Pedersen, George Piggott, Randy Renick, Robby Robinson, Howard Rosen, and Craig Scott. The following defense counsel were interviewed: Stephen Berry, Glenn Briggs, Dan Fears, John Golper, Pat Grady, Matthew McConnell, Jim Morris, Colleen Regan, Craig Scott (who represents employers as well as plaintiffs), and Helene Wasserman.