How Attorneys Can Hire a Mediator
As a lawyer, you’ve probably received some training in a diverse range of options for conflict resolution. Going to court is one option, but alternative dispute resolution (ADR) is promoted as a cheaper and less stressful alternative. Your clients might have heard of mediation but don’t know whether it’s appropriate in their case, or even how to get started.
It’s good for attorneys to recognize when mediation might be the path forward. If it is, having the resources to find the right mediator can help your client secure a satisfactory result. Here’s a primer on signs that you might want to recommend mediation and a few tips on how to find a mediator.
When Is Mediation Required?
Some states require parties to attempt mediation in certain types of cases, like child custody. In some jurisdictions, the court can make mediation mandatory for civil cases. The parties in a civil dispute might also ask for mediation.
As an attorney, it can be important to talk to your clients about when they might have to attend mediation and to answer their questions or concerns. They might be uncertain about being in the same room as the other party. They might also question the impartiality of the mediator, or the mediator’s ability to maintain balance between the parties.
What Are Some Signs Your Clients Should Seek Mediation?
Even if going to court remains an option, there are signs you might want to recommend mediation to your clients. They might be reluctant at first, but it might prove to be the best route for resolution in their case. Consider bringing up the topic if:
- The parties have an ongoing relationship. This can include co-parents, neighbors, family members, business associates, and others who will continue to have to work with one another in some way in the future.
- The issue brings up high emotions. Sometimes emotion can get in the way of resolving the issue reasonably. A mediator can help the parties navigate emotionally charged issues or difficult interpersonal dynamics. However, even if you think mediation is a good fit for your client, as an attorney you have an ethical obligation to do as your client wishes.
- The client might suffer harm from a public process. Mediation is confidential and private. If your client does not want to air their issues in public, and lawyer-to-lawyer negotiations have not worked, mediation might be the next best step.
Your client must be open to mediation as a resolution option. If they are not interested in coming together with the other side, the process might be doomed to fail.
What Are Some Warning Signs Against Mediation?
Mediation isn’t always appropriate, and it’s a good idea to bear in mind the signs that mediation is not a good fit for your client. Here are some examples:
- Your client or the other party is unwilling to negotiate or compromise.
- There is a significant power imbalance between the parties that a mediator cannot overcome.
- There is a history of abuse or victimization.
If your client seems reluctant to meet the other side in mediation, you might want to learn more about why they are reluctant. A client might not always be upfront about a prior history of abuse or threatening behavior, so you should work with them to fully understand their feelings and motives.
What Is the Lawyer’s Role in Mediation?
As your client’s attorney, you are typically expected to be present in mediation. In some cases, your presence may be required. Your role in mediation is unlike that in court, as you cannot cross-examine the other side. You typically advise your client and review any agreements made during the mediation process.
You can prepare your client for mediation by helping them understand the process. You can do a run-through of questions the mediator might ask, such as open-ended queries about your client’s concerns. You can also prepare your client for the fact that the other side, and possibly their attorney, will be present during the mediation sessions.
Who Pays for the Mediator?
The parties typically split the cost of the mediator. The fee depends on the individual mediator. Some county courts have a list of mediators whose fees are capped at a set hourly fee. If you and the other side choose to use a private mediator, it might cost your clients significantly more.
It is a good idea to discuss the issue of mediator fees with your client, including how your billing might be combined with the added fee for the mediator’s time. In most cases, mediation will take several sessions and costs add up. When you and your client move to choose a mediator, you can ask how the mediator bills for their time. The mediator might also be able to give the parties some idea of how long mediation might take, although that is not always predictable.
How Can You Find a Mediator?
As an attorney, you can discuss the options for mediators with your clients. The other side has to agree to the mediator, so the choice is not entirely independent. There are a number of places you can look for a mediator including:
- List of court-approved mediators
- Lawyer referral networks
- Individual mediator advertisements
Some public-facing court information recommends that individuals looking for a mediator might also want to ask a community organization to find one. As an attorney, you might want to consider whether the nature of the dispute requires a mediator with specialized community understanding or knowledge.
Elevating Your Law Firm Marketing
As a small firm lawyer, elevating your practice profile can help you gain access to a broader range of resolution options for your clients. As more people in the industry come to know you, you’ll likely expand your referral networks of mediators and other third parties who can help your clients resolve conflicts. To elevate your firm’s profile, consider using the latest tools of digital marketing. Contact Martindale-Avvo today to learn more about how we help.