Choose Your Mediator Wisely

As seasoned litigators, you are all aware of the basic differences between mediation versus arbitration. The Mediator and Arbitrator should both retain an exterior demeanor of strict neutrality, without suggesting to the parties any sense of partiality. The Arbitrator, of course, presents a judicial air, and though seemingly impartial, must eventually decide in favor of one side or the other, while the Mediator works to facilitate compromise.

There is a sweet irony to be appreciated. The Mediator must appear neutral when all parties are before him. Yet, when in caucus, the Mediator's task is often to point out the weakness of either side's case in order to move them to a posture more likely to eventuate in compromise. In effect, the Mediator becomes an advocate for each side, playing the devil's advocate, if you will.

Select your Mediators and Arbitrators wisely, if you can. Find someone who understands the legal principles involved in your case. Only then, will the strengths of your arguments be appreciated and become an arrow in the quiver of "your" devil's advocate.

DO NOT ASSUME that your Mediator knows the law. Provide a memorandum to your Mediator and adversary, especially if you are on firm ground. This will provide opposing counsel with a chance to point out to his client some of their weaknesses, adding to the possibility of resolution. Once you get to trial, all bets are off.

Rich Smukler
Certified Mediator
Qualified Arbitrator
(561) 866-1688