It is said that “No dispute is ever about what it’s about”. Very often, the drivers of a dispute are several issues or motives, and sometimes the formalities of the dispute are merely superficial, while the real dispute (and therefore the key to a true resolution) may be centred in something not captured in the legal framing or technical complexities.
Mediators are not empowered to judge the merits of a dispute – they are not judges or arbitrators. Their role is to help the parties come to an agreement, usually by getting to the roots of their problems. So, two of the key questions in selecting a mediator are:
Will we benefit from having a mediator who is familiar with the substantive issues that are most likely to arise in the settlement negotiation?
Or will others at the table supply such specific expertise as is needed?
If you need a more evaluative mediator (see More 3) the importance of familiarity with the specific legal and/or substantive issues governing the dispute may be more important than if the outcome is likely to require the generation of new options or improving relationships for the future.
Remember, when you engage a mediator you are buying that person’s skill to mediate. Not every mediator necessarily has substantive experience in all the practice areas your dispute presents. So, you may need to weigh (a) the mediator’s process skills, against (b) the legal and substantive experience of the mediator in the issues in dispute.
Where both process and substantive expertise are needed, one option may be to consider co-mediation. For example, where a dispute arises over the future of a construction joint venture, and the need arises to change key elements of the venture, you may consider that you need a construction mediator and also an accountant. Or, if the matter involves intellectual property, patent litigation, or technical or arcane subject matter, you may want an intellectual property/patent/software specialist as well as a skilled mediator. Selecting co-mediators that work well together may have an additional cost impact but may greatly streamline the negotiation and help the parties reach a more rounded outcome more quickly. Another option may be to engage a neutral expert with competency in specific technical areas even if that person is not a mediator.