How Can That Person Be a Good Mediator?

By John L. Watkins

Perhaps due to my background, perhaps self-interest, or perhaps simply due to the old saw regarding "birds of a feather," I tend to think that experienced lawyers, especially crusty old litigators, often make great mediators. Litigators, particularly old ones, know that you do not win every case, even those that seemed very strong. Litigators know the problems and issues that can arise in proving a case in court. Niceties such as the rules of evidence and the unpredictability of judges can make proving a case in court a much different (and far more difficult) proposition than simply arguing a position in a less formal environment. Litigators also often have a pretty good idea about how a case is likely to turn out.

Some may question, however, whether a lawyer who is used to advocating for parties can really slip into the role of a mediator and be neutral. The answer, at least as I have found it, is a resounding “yes.” Lawyers understand that, in acting as a lawyer, their job is to be the best advocate possible for their client. However, in acting as a mediator, their role is to help the parties try to settle. As a mediator, a lawyer is not representing either party, and is being paid by each party. A “win” for a mediator is helping the parties reach a settlement. So the fact that a mediator may, for other parties and in other circumstances, also act as a lawyer and advocate does not bother me in the least.

Of course, a lawyer’s background, like any proposed mediator’s background, should be considered in picking a mediator. If, for example, a proposed mediator is also a lawyer who has habitually represented only plaintiffs in personal injury cases, a defendant in such a case may be reluctant to use that person. However, even in such circumstances, such persons may make good mediators. In fact, somewhat paradoxically, such a lawyer may more fully comprehend the difficulties of actually trying a personal injury case.