Mediation has a reasonably good track record (overall, perhaps between 70% and 80% in construction disputes) but it could be better. As a lawyer representing parties, you might well think that quite a bit depends on who you choose, or agree, as the mediator. An ineffective mediator might give you a 50% chance of achieving a resolution at mediation, whilst a skilled mediator might have a 90% chance in the same case. So what should you look for?

There is a spectrum in the mediation world, with facilitative mediators on the one side, and evaluative mediators on the other. At the extremes, facilitative mediators will never express an opinion about the merits of the parties’ cases one way or the other, whereas evaluative mediators might be quick to jump into soon, expressing opinions as to how the case will go if it gets to trial.

A couple of observations about this:

• Purely facilitative mediators might be great for family law disputes, or disputes between neighbours about their garden boundaries. But they have a less than optimal track record in construction disputes.
• Similarly, purely evaluative mediators also perform poorly, on the whole. My rule of thumb, when acting as a mediator, it is never to express an opinion about the merits of the case until both parties think that I am smarter – or at any rate have a better understanding of their prospects – than their own lawyers. At that stage, a measured expression of opinion may well be helpful in bringing a party to a more realistic place.

In other words, try to choose someone who knows more about construction than the individuals who will be there on the day representing the parties, but not someone too fond of their own voice, or likely to express opinions too soon.

What about former judges as mediators? Obviously, some are better than others. But on the whole, my experience is that they do not do very well as mediators. Their training is against it. The three key skill sets for a mediator of construction dispute are:

• a good understanding of psychology in practice,
• a good understanding of the commercial realities in the construction industry, and
• construction law

Unhappily, many ex-judges perform badly in the first two of these. And if you choose a judge who did not sit in a technology and construction court, the judge is likely to perform badly on the third one as well. Some mediations before ex-judges succeed, of course, but not quite as many as should.

At the risk of stating the obvious, avoid ex-judges whose mental faculties are beginning to fade like the plague.

Lawyers or non-lawyers? There are some people in the construction industry who may have started life as architects or engineers who get into the disputes business, and sometimes they can make good mediators. But on the whole, my experience of commercial construction disputes is that the lawyers tend to have a slightly better track record. Not by much. But for reasons which I will come to another post, nonlawyers sometimes fall short in an important respect.

Conflicts of interest? Clearly, a mediator who has a material relationship with one of the parties is going to be severely handicapped. On the other hand, a close working relationship between the mediator and the lawyers on one or both sides – or even a friendship – is likely to have much less impact on the mediation than you might think. Indeed, in my experience, mediations tend to work better if the mediator already has, or can quickly establish, a good working relationship with the lawyers present at the mediation. What might start as a lopsided relationship balance at the beginning of the mediation is usually something quite different by the end of the day.

Hourly or daily rate? Within some very broad limits, the fees of a mediator are likely to be very, very small beer compared with the costs of litigation or traditional arbitration. The best mediators tend to charge roughly the same. Do not buy on price.

Male or female? It does not matter, in my experience. Most good mediators are men, but some really good mediators are women. Choose on track record, not on gender.

Lion or mouse?  Should you choose someone dominant and impressive? Or someone quiet and unthreatening? My experience is that the most successful mediators are neither, but have an air of quiet authority.