Employment & Labour, Mediation

Six steps to selecting an employment mediator

By Tony Poland, AdvocateDaily.com Associate Editor

Choosing the right mediator is a vital first step in settling your case, so it’s essential to make an informed decision, says Toronto employment mediator and arbitrator Barry B. Fisher.

Fisher, principal of Barry Fisher Arbitration & Mediation, tells AdvocateDaily.com that “the rapport between the lawyer and the mediator is very important,” and there are many things to consider when finding the right fit.

He says developing a good reputation can be tricky.

“It’s like restaurants. If you go to a good one, you might say it was nice. But if you go to a bad restaurant, you don’t forget it,” Fisher says. “You remember the rude waiter and that the food was awful.”

He says a good mediator should be judged on results more than style. And if they are doing their job properly, word of mouth can go a long way, Fisher adds.

“I would say most lawyers eventually develop a cadre of mediators they prefer. The best thing is to talk to your colleagues,” he says.

Fisher lists six key elements a client should consider when hiring a mediator — including the type of mediation being practiced, product expertise, whether the mediator favours using joint caucuses, the cost of the service, and availability of dates.

“And the final element, which is probably the most important, is how you personally relate to that mediator,” he says.

Mediators are generally classified as evaluative or facilitative, says Fisher, although “in my opinion, because nobody fits completely into one category, it’s more like a continuum.”

While he is comfortable in his ability to facilitate discussion, Fisher describes himself as an evaluative mediator and says it is his job to have “a firm knowledge of the law and the trial processes. And personal experience can be very helpful in assisting the parties to analyze the risks and the costs of not settling.

“An evaluative mediator feels freer to express his or her opinion when asked,” he says. “The classic facilitator mediator would cringe at the thought of applying pressure to a party, whereas an evaluative mediator would feel more comfortable with it.”

Fisher says product expertise used to come down to a question of, “Do you want a person who knows about the subject area of law or someone who is experienced in the mediation process?”

“The easy answer now is you don’t have to make that choice — you can have both,” he says. “Most lawyers want a person who is adept at alternative dispute resolution but is also is knowledgeable in the law.”

Knowing how the mediator works is also essential in the selection process, Fisher says.

He explains that historically, a joint-session approach was preferred, but he eventually found they were not effective.

“Every time I went to a mediation seminar, you’d hear war stories of how horrible joint sessions were, and I realized the best anyone could say about them was that ‘Well, at least it didn’t go badly,’” Fisher says. “So I thought to myself, why are we doing something which, at best, is neutral? What does the client want? So I started asking.”

He says, while the option will always remain, he finds, “employment law is probably the area that least uses joint sessions.”

When it comes to cost, it’s essential to consider what you are paying for, Fisher says.

He says few mediators have their own meeting space, so going to a neutral facility can be expensive.

“The cost is what I am charging you as a mediator and the room rate. Most people understand the total cost is the sum of the two items,” Fisher says.

“Other people may charge a few hundred dollars less, but then you have to pay $800 for a room. You have to compare apples to apples.”

Availability is also important, especially for an employment mediator, says Fisher.

“You are dealing with unemployed people who want their money, and employers who want to get these things off the desk,” he says.

Because he deals primarily in employment law, Fisher says he is able to mediate a case in half a day, so availability is rarely a problem.

He says the final thing to consider is the potential relationship between the client and the mediator.

“It’s not necessary to like the mediator and want to go out and have dinner with him or her,” Fisher says. “My job is to get a settlement. I’ve always joked that it’s better if both parties leave saying, ‘That mediator wasn’t the nicest person, but I got a deal,’ as opposed to, ‘He was a great guy, but we still have this lawsuit.’”

He says it all comes down to being open to hearing what both sides are saying.

“If you are known to be completely pro one side, the word will get out because lawyers talk to each other incessantly about mediators. Then your work will dry up,” Fisher says.

“The institutional selection process forces neutrality, which is good.”

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