The Closer

A Mediation Newsletter July 2011

The Qualified Neutral
by James Rainwater

The states all have some version of mediating legal disputes, and the names and qualifications vary as well. However, in general, the mediator must have had the basic mediation training set forth by the state, as well as being neutral. Yet, what does "neutral" mean?

I imagine most attorneys and mediators have their own definitions of a neutral mediator. Essentially, as long as all parties agree (including the court if required), any qualified mediator can conduct the mediation. Does that mean that the mediator will be a qualified neutral every time? It probably does not.

All attorneys associated with an upcoming mediation should be mindful of the relationships and frequency of past chosen mediators. Insurance adjusters may have their favorite mediators to use; former law partners may demand the continued selection of a close colleague; defense attorneys may request a mediator from a permanent short list of pre-approved candidates.

Past and continuing relationships do not inherently spell a conflict of interest. However, the possibility of some form of favoritism does exist, if only on a subconscious level. As a qualified neutral, the mediator should truly be autonomous and not reliant on future work based upon the mediation results that are obtained for a particular party or attorney.

Mediating attorneys know that that they will not prevail every time in mediation. Having a close colleague mediate a case may be comforting, but it may come at a cost. Many clients are well aware of the words, gestures, and energies exchanged among the attorneys and the mediator. Therefore, when selecting their next mediator, attorneys should consider the real and perceived relationships that may impact the conference and the true neutrality of the mediation itself.

Rainwater Law