How do I agree a mediator with the other party?

A frequently asked question, answered here by Andrew Miller QC and Rebecca Attree

 

It costs money for both sides to keep arguing over who the mediator of their dispute should be. But as two IPOS mediators point out, it’s an easier decision than you think…

 

Rebecca:

Clearly going to a mediation provider such as IPOS who will propose three mediators is a good neutral approach. If the other party’s lawyer proposes a mediator you should consider agreeing to their suggestion unless you have a really good reason not to. If they’ve worked with that mediator before they’ll have built up trust in them and they’re likely to work well with that mediator, and that has to be a good thing for you and your client. And also the mediator will have their ear – they’re going to listen to the mediator and that’s a plus point for everyone.

When I was a solicitor and appointed mediators I knew that who I proposed as a mediator would reflect on me and my firm, as happens when any recommendation is made. There can also be a sense for a lawyer who has worked on a file for a long time and got to know the client well that the appointment of a mediator is a key decision – to whom will you entrust this important matter? Good mediators will work collaboratively with all the advisers and if there’s a weakness in one party’s case then that can be discussed in a private caucus and factored into the confidential risk assessment.

 

Andrew:

It’s useful for the lawyer with the conduct of the litigation to make contact with IPOS so that they can have the necessary discussions with the IPOS clerks and practice managers. A junior member of the team may not have sufficient knowledge of the dispute to assist with the choice of mediator. The more the lawyer knows about the dispute the more they can quiz the IPOS clerk on why they’re recommending a particular mediator and if they’ve got previous experience in this type of dispute. As a party representing you can then go to the other side’s lawyer and say ‘I’ve had these discussions with IPOS and these are the three mediators that have been recommended and these are the reasons.’ That can really help in terms of discussions with the other side and agree on the mediator.

And I agree with Rebecca that if one side says ‘I’ve worked with this mediator and they do a great job’ that’s a great indicator. It shouldn’t set off alarm bells that the mediator is going to be in their camp. Because a good mediator won’t be in

any

camp. To explain my independence I often say ‘I don’t care who’s right or wrong.’ That sometimes gets funny looks from those attending… but it’s the best way to explain our neutrality.