Selecting a mediator: what are your goals?

Posted Tuesday, October 15th, 2019 by Gregory Forman
Filed under Mediation/Alternative Dispute Resolution, Of Interest to Family Court Litigants, Of Interest to Family Law Attorneys, South Carolina Specific

Unlike a guardian ad litem–whose work product and testimony may impact a judge’s decision at trial–the only thing the court will hear from the mediator is that mediation took place, what issues were mediated, and what issues remain unresolved. In this respect the choice of mediator has no bearing on the outcome of the trial.

However, generally, the goal of mediation is to settle the case and avoid trial. In this regard the selection of mediator can have a substantial impact on the terms of settlement and an even greater impact on whether the case settles in mediation.

Sometimes–rarely–the goal is simply to “check off the box.” In private actions in South Carolina family court one needs to mediate for at least three hours before one can obtain a trial date. Some (but very few) cases are not amenable to settling in mediation but mediation still needs to be attempted. For these cases any mediator who’s available and relatively inexpensive is fine.

Then there are the cases that aren’t settling because the other side isn’t analyzing the case properly (or, although hopefully this does not happen often, because one’s own client doesn’t trust one’s advice). A common example of this is someone who brings a custody modification case but lacks substantial evidence to demonstrate a change of circumstances. That case settles because the mediator convinces the Plaintiff that further investment in the case is only likely to increase the Defendant’s fee award or convinces the Defendant to offer some small concession to gain closure. Cases in which personality conflicts between the attorneys hinder settlement negotiations (again, hopefully, something that doesn’t happen often) also fall into this category.

The majority of cases being mediated fall into this category. For mediation to succeed the mediator needs to have credibility with both parties’ attorneys but doesn’t necessarily need to be the best mediator available–although a mediator capable of coming up with creative solutions to unique situations is always beneficial. In Charleston County and the surrounding counties, there are at least twenty family court mediators capable of this task.

Finally, there are the cases in which one or both attorneys are highly skilled and highly experienced. Such attorneys go into mediation knowing the value of their cases and have fixed thoughts on where their clients should compromise on their goals and where their clients should stand firm. These cases are extremely hard to settle in mediation, especially if settlement negotiations reached an impasse prior to mediation. For mediation to result in a settlement one or both parties will need to reconsider their (already relatively firm) positions. That requires a mediator whose judgment the attorneys regard highly enough that they will reconsider their own judgments on the value of the case.

For relatively young and relatively inexperienced attorneys, any mediator who would be acceptable in the former category will work fine here. However, when one reaches a certain level of skill and experience, there are few such mediators. An attorney with decades of experience, who has represented thousands of parties, handled scores of trials, and done a number of appeals, is unlikely to reconsider his or her advice to the client based upon the urging of a mediator with a few years of experience, a few trials, and little or no appellate experience.

There are a select group of family court mediators who have to be booked three months in advance. These are the mediators who might convince me to reconsider what my client’s best offer should be. These are also the mediators I will go to for a second or third round of mediation when previous mediations failed. The reason attorneys are willing to wait those three months–when other mediators are less expensive and readily available–is that these mediators represent the only realistic opportunity to avoid a multi day (week) trial.

Ironically, these are also the mediators whose “settlements,” in my experience, occasionally fall apart after mediation–when, after mediation, one or both parties subsequently come to the conclusion that they compromised too many of their goals to obtain a settlement. There’s a tendency to blame the mediator when these settlements collapse, but I no longer do. Instead, I’ve concluded that the mediator helped the parties reach the one of the few likely possible settlements that potentially outweighed the risks of trial, but that the risk of trial was still smaller than the benefit of settlement. In these circumstances, other mediators would have likely guided us to an impasse rather than a broken settlement.

Mediation is simply another tool in a trial attorney’s toolbox. The choice of tool is dependent upon the circumstances of the case, the experience and skill level of the attorneys involved, and the relative stakes of settling too cheaply versus risking trial. Not every case should settle in mediation. However foregoing any realistic opportunity to settle because one was too cheap or too impatient to select a more trusted mediator is a litigation failure. One should avoid selecting a less experienced or expensive mediator when selecting a more trusted mediator could lead to settlement.

2 thoughts on Selecting a mediator: what are your goals?

  1. David L DeVane says:

    Well stated Greg. I also think that the choice of a mediator should also hinge upon the type of case being litigated. Some mediators are better with child related issues that others and some are better with economic issues than others.

  2. Brandon says:

    Some act as though lawyers acting as GALs and mediators are somehow bestowed with the specific knowledge needed simply by taking on the roles. “Some” would be the lawyers themselves.

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