Selecting a Mediator in International Disputes: Dare We Speak of Mediation as "Winnable"?

Dispute Resolution Journal, May-Jul 2006 by Salomon, Claudia T, Sharp, Peter D

Although mediated solutions to international commercial disputes require the parties to agree on settlement terms that are acceptable to both parties (a "win-win" solution"), practitioners must still work with clients who demand to win-even in mediation. Successful mediations-i.e., those in which all issues are resolved by a settlement agreement-depend on the integrity of the mediator. This article identifies five pragmatic considerations that could help practitioners select a mediator for an international mediation that could lead to a settlement more satisfactory to their clients.

It is undisputed that a mediator must be neutral and fair and be able to assist parties who are trying to reach a mutually agreeable solution. Within the realm of impeccably neutral and fair mediators, however, some mediators will inevitably be more or less effective at relating to the nuances of a particular party's position. This disparity can be even more pronounced in international disputes, where the parties come from different cultures and legal systems, tipping the balance of bargaining power in favor of one party or another.

Mediators say that for a successful mediation (i.e., a mediation that will result in a settlement), all parties must come to the mediation interested in settling the dispute. Thus, it has become unseemly to speak in terms of "winning" a mediation, particularly when it comes to selecting a mediator since it could be viewed as surreptitiously stacking the deck in advance.

Realistically, however, clients want the best possible result, and it is the job of an advocate representing a client in mediation to help secure that result. While looking for a mediator who is neutral and fair, both in fact and in the perception of the parties, shouldn't counsel select a mediator who may be favorably disposed to the client's position? The fact remains that, as between two equally acceptable mediators, one may be the more strategically beneficial choice.

There is no magic one-size-fits-all formula for selecting a mediator for an international dispute because the appropriateness of a mediator is intensely issue specific. In this article we set out five factors that could help an advocate who needs to select a mediator for an international dispute obtain the best possible settlement. Taken together, these factors should assist the advocate to assess the mediator's ability to advance, not just the resolution of a dispute, but a successful outcome for your client.

1. Reputation and Standing

The importance of a mediator's reputation and standing may depend on the nature of the mediation. In "facultative" mediation, where the mediator does not express an opinion on the merits of the dispute, reputation is arguably less important. In contrast, during "evaluative" mediation, where the mediator opines on the relative merits, the reputation of the mediator can be very important. For example, where a pre-mediation case assessment indicates that your client has the stronger legal argument, a mediator who is held in very high esteem by the opposing party could be a good choice. Put differently, when mediating from a position of strength, you want that strength communicated to the opposing party from the most authoritative source available, in this case the mediator. The very confidence the opposing party has in the mediator could lead to a better settlement for your client.

However, one should not fall into the trap of assuming that reputation alone makes for a capable mediator. There is no substitute for doing your homework. Prior to selecting any mediator, you should investigate the mediator's reputation and track record through your network of contacts.

Some of the most successful and experienced professional mediators in the United States could be characterized as "bangers"-mediators who pride themselves in "closing" cases at all costs; they pressure the parties to force a settlement. For some disputes, this can be ideal. For many international disputes, however, an abrasive style would be foreign to at least one party and may in fact be counterproductive.

Another mediator may have great credentials and significant experience, but you know someone who had a terrible experience with that particular mediator. At the very least, you will want to determine what went wrong and evaluate how the dynamic in that case could impact on your own.

Choosing a mediator who the other party considers to be biased or not worthy of respect for whatever reason will render the mediation dead in the water before it begins. As a result, in some instances it may be advisable to accept the opposing party's choice of mediator, so long as you have no substantial objections to that individual. Mediation with a suboptimal mediator may be better than no mediation because mediation has the advantage of being a voluntary process, and the parties are not required to reach a settlement.

2. Neutrality, Impartiality and Independence

Neutrality, impartiality and independence imply similar but distinct considerations.