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NATURAL SELECTION: In Mediation, Familiarity Breeds Confidence
by Deborah Rothman

When selecting a mediator for an important case, it is natural for the practitioner to want to obtain an edge; conversely, the wise advocate avoids being outmaneuvered. Disqualifying for bias or conflict of interest a mediator with whom opposing counsel has previously worked would appear to be a way to satisfy this criterion. In actuality, however, a more comprehensive, in-depth analysis of the mediator's credentials is preferable to unthinking adherence to arguably irrelevant standards.

The absence of a comprehensive statutory scheme governing mediator disclosure does not mean that the standards prescribed for the disqualification of arbitrators by California Code of Civil Procedure Section 1281.9 et seq. should therefore be blindly applied.

The lumping together of arbitration and mediation - two quite dissimilar processes - under the alternative dispute resolution umbrella still causes many practitioners to confuse the two in some fundamental respects. It is not surprising, therefore, when counsel assume that factors identified as conflicts of interest for arbitrators should also disqualify mediators.

Practitioners should understand that arbitration and mediation in their purest forms are as dissimilar as litigation and marriage counseling. Consequently, the concept of conflict of interest means different things in these distinct contexts. Similarly, and by way of illustration, communications that would be proscribed as ex parte during an arbitration are called caucuses in the mediation context.

The question is: Do prior dealings with a proposed mediator by one or more parties constitute a conflict of interest such that opposing counsel should refuse the services of the mediator?

In arbitration, which is by definition a normative, adjudicative process, it is not necessary for both sides, or even one side to believe that the award is fair or satisfactory. As long as the arbitrator is perceived by both sides as fair, neutral and impartial, the parties will have confidence in and respect for the award.

Mediation, on the other hand, is collaborative. The settlement reached must be perceived by both sides as win-win or there is no settlement. It is tautological that all parties to a mediation have the opportunity to refuse to settle the case if they do not find the proposal satisfactory. The respect for the decision reached emanates principally from the parties participation in fashioning it, and only secondarily from the wisdom and fairness of the mediator.

It is appropriate to consider the risk of bias where the proposed arbitrator has worked on numerous arbitrations for one side, and can expect recurring arbitration business from that side in the future. It would not be unwise for the other party to worry that the arbitrator's award might, if only unconsciously, favor the party that presents the likelihood of continued business. Hence, the need for a statutory scheme requiring rigorous disclosure of past professional and social contacts by the arbitrator is apparent.

In contrast, the mediator can expect recurring business only if the mediation resulted in a settlement that satisfied both sides, or if the case did not settle but both sides were impressed with the mediator's patience, tact, diligence, intelligence and sensitivity. In other words, mediators get repeat business by, in effect, favoring both sides by favoring neither side, thus facilitating settlements that both sides can live with.

Additionally, facilitative mediations differ from settlement conference type mediations, which are often conducted by retired judges or by practicing litigators. Because the neutral in the latter circumstance is empowered to informally and perhaps confidentially render an opinion on the merits of the case, and thus force the parties into an agreement, the conflict of interest standards prescribed for arbitration would, arguably, be pertinent here too.

According to the American Arbitration Association, when considering various mediators for an important case, the practitioner should consider selecting "an active listener who can, without endangering one side's perception of the Mediator's impartiality by appearing to take a position, assist the parties to better understand each other's views and offer creative solutions to move them off what might otherwise be entrenched positions. Successful Mediators do not take positions. Rather, they attempt to suggest, clarify, interpret, reason, persuade, and to inform the parties of the pros and cons of each side's case and of alternative solutions to their dispute." American Arbitration Association, "Mediation and Arbitration: Handbook for Attorneys and Their Clients." p. II-8 (1991).

The mere fact that the proposed mediator comes highly recommended by a party should not necessarily raise irremediable suspicion on the part of the opposing party. Perhaps the opposing party has had one or more opportunities to witness first hand the mediator's facilitative skills and has confidence that the mediator has the requisite intellect, patience, diplomacy, tenacity, experience, compassion, honor, tenacity and, often, sense of humor to settle the case. Under these circumstances, should the mediator nonetheless be blindly disqualified? If so, would a mediator that neither party has ever worked with be preferable?

"The existence of some prior contact with the other side does not necessarily mean the mediator should be rejected. Unlike arbitration there is a much smaller risk that a mediator could influence a particular outcome because of a conflict of interest since the mediator really has no power to make a decision. A party might even want to use a mediator who would have credibility with the other side by virtue of such prior contacts." Roth, Wulff and Cooper, "The Alternative Dispute Resolution Practice Guide," Section 28:6 (Lawyers Cooperative Publishing 1994)

In determining whether the mediator should be disqualified for conflict of interest , then, the analysis should take into account that theoretically it is almost impossible for a facilitative style mediator to "throw" a mediation. The role of the mediator is to identify issues, reduce obstacles to communication, assist the parties to weigh and evaluate alternative settlement proposals and generally help the parties reach an optimal voluntary settlement. The mediator does not express an opinion as to which side has the better case, much less browbeat the parties into settling along lines determined by the mediator.

Once a neutral gains a reputation for effectively mediating cases in a particular field of law or among a particular group of attorneys, it becomes inevitable that the mediator will have worked with some or even the majority of counsel on any given case. Counsel should recognize this as an advantage. A mediator who knows most of the parties from prior negotiations can often move quickly through impasses because he or she is familiar with what kind of approach works best with each individual and has already earned the confidence of many of the participants.

When all the factors to be considered in retaining a mediator are calibrated by significance, it becomes clear that the mere fact of prior contact between the mediator and one or more of the parties or their counsel is inconsequential compared to the issues that should be paramount: Can this mediator consistently settle cases under circumstances like the instant case, and does this mediator possess the intellectual and personal traits necessary to move these particular clients and these particular attorneys toward a mutually acceptable settlement?

Deborah Rothman is a Los Angeles attorney and member of the AAA panel of arbitrators and mediators.

Copyright © 1996 by the San Francisco Daily Journal. Reprinted with permission.


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