There is an old adage in litigation “know your judge.” Essentially what that means is that you should find out as much as you can about the judge you are appearing in front of both so you can try to understand what the outcome might be but more importantly, so that you can may a presentation to the judge that she/he will respond positively to. Some judges will let you go on an one. Some judges have little patience and you have to get to the point. With some judges, it seems like the last person to speak wins so you want to make sure you get the last word in. Others sit there stone faced and say nothing at all. Some are very interactive with settlement and others are not. Some have substantial family law experience and others do not. Some do little to settle and push cases to be tried and others don’t really want or believe that any cases should be tried. To the extent possible, knowing your judge is an arrow in a lawyer’s quiver that helps them best represent their client.
Does the same thing apply to mediators? The answer is yes and more importantly, in most cases, unlike the judge who gets assigned to a case, it is the lawyers that have to select and agree upon a mediator. Of course, you want to select a mediator who you think will most favorably view your case, all things considered. We had a recent matter where opposing counsel rejected upwards of 20 mediators that we suggested, many retired judges, and would only agree to one or two people that she suggested. Our guess is that the lawyer perceived that all of the mediators who she had issues with also had issues with her. That happens.
But aside from selecting a mediator that you think would be substantively/legally helpful, serious thought should go into selecting a mediator whose style and personality would be appealing to your client as well as the other party, to assist the parties to move toward settlement. I recently had a situation where we selected a second mediator after the matter made little to no progress with the first mediator. The first mediator was grandfatherly, soft spoken, knowledgeable, impeccably credentialed and had substantial gravitas. The soft touch was appealing to one of the parties but totally ineffective with the other. The second mediator had similar if not greater credentials and gravitas in some ways (but not in others), but was much more direct and blunt – and jumped right into the deep water as opposed to letting the process go on hours or multiple sessions. The party that gelled with the soft spoken mediator was totally turned off by the direct approach and the other party more receptive. Perhaps with these too, given their very different personalities, there would be no one mediator who checked all of the boxes and could reach both of them.
The point is that you have to know your client and know your mediator and try to agree on one that will be helpful substantively and also be able to develop a relationship of trust with both parties so as to be able to facilitate resolution, if one is possible.
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