Selecting a Business Mediator
In selecting a mediator for your business dispute, you should consider a few special factors regarding the skills and style of the mediator you choose. This section briefly examines these factors, as well as where to find mediators who can handle business disputes.
1. Mediator Skills
As discussed in Chapter 3, mediators bring to their work a combination of process skills (knowledge of how to conduct a mediation) and subject-matter skills (understanding of the subject area in dispute). Mediators with good process skills can handle a wide array of cases, even if they start with very limited knowledge of the dispute’s subject matter.
a. Choosing a Mediator With Subject-Matter Skills
In some business mediations, having a mediator with subject-matter knowledge can be especially useful. Some business disputes (partners breaking up, for example) cry out for a mediator with financial savvy. Although the parties are the ones who have to agree, a mediator who knows how to structure a sensible buyout plan that includes safeguards to be sure installment payments are made and anticipates likely tax consequences would probably be more helpful than a mediator from a community mediation center who has trouble balancing a checkbook. Similarly, if your business dispute involves technical issues—such as manufacturing processes, patents, or construction law—it makes sense to use a mediator who understands these issues.
A mediator with subject-matter expertise can help you in two ways: you won’t have to spend time at the beginning of the mediation educating the mediator about the issues, and the mediator may be better able to generate creative settlement proposals that involve the technical aspects of the dispute.
b. Choosing a Mediation Team
An alternative is to use co-mediators. Often, a mediation team consists of a skilled general mediator paired with a second person who serves as a technical adviser.
The advisor might be another mediator who doesn’t feel up to handling the case alone, or simply a technical expert from outside the mediation field. If you want to use a co-mediation team, you will probably want to go through a private dispute resolution company. The case manager should be able to put together a team that will meet your needs.c. Choosing a Facilitative or Evaluative Mediator
You will also have to decide whether you want someone whose style is facilitative or evaluative. (See Chapter 3 for a discussion of these different styles.) The facilitative mediator sees his or her role primarily as a neutral listener, helper, and message carrier. The evaluative mediator is more inclined, after listening to everyone’s point of view, to help the parties develop a concrete settlement proposal. Many business people prefer evaluative mediators because their input tends to speed up the process. This approach also puts executives in the familiar role of weighing options rather than having to start from scratch and work cooperatively with an opponent to create a solution to the problem.
2. Finding a Business Mediator
Private dispute resolution companies will have on their panels a number of capable mediators for business disputes. You can also use an independent mediator who specializes in business cases. To find a mediator for your business dispute, try the following:
• Ask a local lawyer who specializes in that subject area—for example, patent law, securities, or construction—to recommend a good mediator.
• Call the national office of a professional association involved in the subject area.
• Contact a mediator association, such as the Association for Conflict Resolution (www.acrnet.org) or Mediate.com (www.mediate.com). These organizations offer referral services on their websites.
Community mediation centers generally do not take on cases between businesses. If your business is small and your dispute reasonably straightforward, however, your local community mediation center may be able to handle it.
If so, this would be the least expensive place to take your case. And even if they can’t help you, they may be able to suggest a good local mediator who can.3. Fees
Fees will depend on the number of parties involved, how long the mediation lasts, whether the mediation service or independent mediator operates nationally, regionally, or locally, and the particular mediator you select. Typically, fees will be quoted as a combination of administrative charges plus an hourly or daily rate based on the mediator’s time. In general, for a relatively straightforward two-party mediation lasting one full day, using a mediator from a national firm, the cost per party will be in the range of $1,500 to $2,500. If the mediator is provided by a regional or local company, the daily cost per party would probably be more like $1,200-$1,500.
Business mediations may take anywhere from a day to a week of a mediator’s time. The mediator will spend at least several hours of that time reviewing documents submitted by the parties; the rest will be spent in actual mediation sessions.