Choosing the Other Guy’s Mediator

By Stephen Marcus, Mediator

You have agreed to mediate your case, and your opposing counsel has proposed someone you do not know as a mediator.  You do your research on this mediator, and  he1 has the requisite subject matter knowledge and experience.  However, the one nagging thought on your mind is: “if my opponent is suggesting this mediator, then he must favor my opponent.  Therefore, I don’t want him.”  The converse also occurs frequently: If I get to choose a mediator, let me chose someone who is friendly to me and will beat the other side up.”  However, such reactions are the result of a misunderstanding of the mediation process and of who holds the real power in a mediation. 

 If you are going into a mediation with the expectation or desire that the mediator will be favoring one side or the other, and that the result of mediation is victory or defeat, you will be disappointed.  It is indeed the rare case in which one party obtains in a mediation complete surrender by the other side.  The purpose of mediation is to try to find a resolution that both sides can live with – and it is unrealistic to expect that the other side, with (presumably) competent counsel – will accept a resolution that is a complete victory for your side.

Also, in a mediation, the real power does not rest with the mediator – it lies with the parties and their counsel.  A mediator is only a facilitator.  He does not have the power or authority to make any rulings or decisions, or to order the parties to do anything.  The only power a mediator has is the power of persuasion.  No matter how much a mediator which you perceive is favoring your opponent tries to “beat you up”, you have the power to resist that attempt, and stand your ground if you believe that is what is in your client’s interest.  While the goal of any mediation is to make a deal that both sides can live with, it is the parties (guided by their attorneys) who have the ultimate power to say “yes” or “no” to any proposed deal.

In an evaluative mediation (where there is no possibility of any on-going relationship between the parties, and the primary, if not the only issue, is “how much”), you can expect a mediator (whether you selected him or your opponent selected him) to try to poke holes in your case, and to convince you that you should reevaluate your case and your (and your client’s) realistic objectives.  A good evaluative mediator will do this to both sides.  Thus, in selecting a mediator, you want someone who has both the subject matter expertise and the legal/litigation experience to be able to make credible evaluative comments, predictions, and recommendations.  And you also want a mediator who will be credible – not necessarily to your side (since you have the ability to resist any evaluation or recommendation you do not find to be credible) – but to your opponent.

But, you may ask, what about the credibility of the mediator’s recommendation to me?  Well, you have the power to reject any mediator recommendation, evaluation or proposal with which you disagree.  Presumably, you know your case well enough to determine whether what the mediator has told you makes sense.  So, too (presumably) does your opponent.  However, if (a) he selected the mediator, and (b) you make a credible presentation to the mediator about the value of your case – which the mediator will convey to your opponent, then the fact that the mediator has credibility with the party that recommended him (whether or not he has credibility with you) is a plus for your side.

1 The use of the masculine gender for pronouns is for convenience, and refers to attorneys and parties of either gender.

© Stephen H. Marcus 2015


Stephen Marcus is a Panel Mediator for EB Resource Group. He specializes in business litigation, bankruptcy, UCC matters, secured creditor transactions, commercial contracts, real estate and construction disputes.  To schedule Stephen for a mediation, please call (818) 753-2326.