Mediatior Selection

Historically, arbitration has been the most commonly used dispute resolution alternative to litigation of employment cases. Arbitration found favor from employers as a means of reducing litigation costs but was disfavored by employees due primarily to jury trial waiver and limitations on discovery. Following the legislative creation of pilot mediation programs and enactment of statutes protecting communications in the mediation process, mediation has expanded to rival arbitration as a dispute resolution alternative to litigation of employment cases. *

As mediation has emerged as a favored dispute resolution option, employment attorneys have recognized that the unique attributes of mediation require unique attributes of an employment mediator. In employment cases, a mediator should possess:

expertise in employment law;
experience as an employment law mediator;
communication skills that are effective with employers and employees; and
extensive knowledge of business and industry.

These competencies are a function of the mediator’s responsibility in the mediation process, i.e., to facilitate communications between the parties to achieve a resolution determined by the parties through mutual agreement. To fulfill this responsibility, the mediator must possess effective communication skills and expert knowledge of the law. In the mediation context, effective communication is an experientially derived skill that enables the mediator to vary communication styles and negotiation strategies to accommodate party differences. Legal expertise and experience in the relevant industry enable the mediator to comprehend complex legal and factual issues inherent in employment cases without time consuming explanations that divert the focus of the mediation. **

From a pragmatic perspective, experienced employment attorneys prefer a career employment law mediator to generalist neutrals or part-time mediators in that:

the scope of employment laws and changes to these laws through legislation, judicial opinions, and socio-economic trends require constant attention to maintain legal expertise; and
the spectrum of cultural, educational, and emotional client characteristics require an experienced and unbiased mediator to maximize the potential of the mediation process to resolve underlying as well as case-dispositive issues.

To best serve their clients’ interests in mediation, employment attorneys will:

offer their clients the opportunity to participate in the mediator selection process; and
ensure that the mediators offered for consideration possess the competencies required of an employment law mediator.

* California enacted statutes governing private arbitrations in 1961 (CCP § 1280, et seq.); authorizing judicial arbitrations in 1978 (CCP § 1141.10 et seq.); creating pilot mediation programs in 1993 (CCP § 1775 et seq.); and protecting the confidentiality of the mediation process in California statutes 1997 (Evid C § 1115 et seq.).)
** In contrast, an arbitrator’s singular authority to make legal, factual and evidentiary rulings and render a binding award makes adjudicative experience the paramount consideration in arbitrator selection. An arbitrator’s interpersonal communication skills are virtually irrelevant because direct communications between the arbitrator and parties are limited to testimony elicited by direct and cross-examination at the arbitration hearing. Finally, the extensive briefing of legal and factual issues and presentation of evidence at hearing renders an arbitrator’s legal expertise regarding the claims to be arbitrated less significant than in mediation.