Readings:

Lande, J. 'Lawyering and Mediation' 24 Florida State University Law Review (1997) 839 @ 845-854

Selecting the most appropriate mediation model

Within the generic framework that most mediators adopt (opening statements, agenda-setting, discussion of issues, option generation, closure) there are many process variables for mediation. Some of the most significant of these include:

• whether the structure of the process itself is negotiable or fixed
• attitudes towards the participation of clients (for example, who makes the opening statement, who will answer questions posed by the mediator)
• whether the mediation is open (that is, where the discussions are admissible in any furtue court proceedings) or closed (where the discussions are inadmissible, by far the most common approach)
• the length of session and the possibility of a repeat session
• the cost (mediator's fees range from $150 to $500 an hour; plus incidental costs for the venue etc)
• location
• the availability of early neutral evaluation (an authoritative legal opinion on a point of law, usually provided by another third party)
• the use made of private caucusing (including lawyer-only and client-only caucuses)
• the anticipated final product (for example whether the mediator will assist in drafting of minutes of settlement, or whether the parties will leave with a mediator's report, which the parties and their representatives must then translate into formal heads of agreement)

Selecting the mediator

There is as yet no national regulation of mediation as a professional practice. This means that advance research before you hire a particular mediator is especially important in order to protect your client.

There are three major variables in mediator qualifications which may be relevant to your choice of mediator. These are an industry background; a legal background; and a mediation (facilitation) background. Some mediators of course combine all three. Depending on the case, it may be more or less important to ensure that the mediator has legal expertise in the specific area in dispute. In some cases it may be more important to ensure that the mediator has the necessary facilitation skills and experience, rather than expert knowledge of the legal issues in dispute.

As well as qualifications, the question of the mediator's personal style may also be relevant (see the excerpt from Lande (1997) in the Course Manual). There are many variations along a general spectrum of facilitative/ evaluative, 'orchestrator'/'deal-maker' styles (see Topic One above) and you should consider, with your client, which approach may be most suitable to this particular dispute.

Selecting the appropriate client representative

It is critical to ensure that the appropriate client representative attends. It is especially important to ensure that the person with necessary authority will be present, or directly accessible. Do not make the mistake of asking a person without authority, or without access to authority to accompany you. If possible, ensure that the person's authority extends beyond simple monetary options since other types of undertaking may also be important (eg future dealings, apology and acknowledgment etc).

In addition, consider who might make the best participant in mediation. Ideally, you want a client representative who is articulate, can withstand pressure and will not lose their cool.

Selecting the appropriate legal representative

Research shows that the most successful mediations - those in which the client feels most satisfied with the outcome - are those where one or preferably both legal representatives are familiar with the objectives of the mediation process and can advocate effectively in that setting.

Please consider Professor Lande's proposals for 'shopping for a mediator' (see the excerpt in the Course Manual) and join Discussion Room Four for further discussion of this topic and sharing of experiences in selecting a mediator and a suitable process.