When considering whom to select as the mediator of your dispute, whether you are in litigation or not, it is essential to consider the qualities that make a good and effective mediator. Of course, initially, you will want to confirm that your prospective mediator has had appropriate training in the craft of facilitating resolutions to difficult disputes. An effective facilitator, which is essentially what a mediator is, has behind him or her much more than just book learning though, and your selection process should not end with a list of candidates who have taken courses in mediation. Because the work of a mediator, particularly in the context of commercial disputes, often requires the mediator to assess, along with each party, what might lay ahead in the event a resolution is not reached, the mediator should bring with him or her experience advocating on behalf of people and businesses like yours through litigation, arbitration and mediation: someone who has “been there” advocating for clients just like you. Only someone who has shared the long, stressful and costly road through litigation with clients hundreds of time over truly understands the many pitfalls, uncertainty and risks inherent in litigation, and the opportunities presented by mediation. There is also no substitute for the experience of having ushered hundreds of clients through highly adversarial litigation in developing empathy for the participants, which is a requisite quality of a good and effective mediator.
If all parties to the dispute have a good faith interest in resolving their dispute, a mediator with years of litigation experience is well equipped to assist the parties and their counsel with assessing the alternatives to a mediated resolution. In short, this mediator is someone who knows where you will likely “go from here” if a facilitated resolution through the mediation process is not achieved.