Bernard C. Barmann, Jr

by Bernard C. Barmann, Jr.

PART 3 - CHOOSE THE RIGHT MEDIATOR T HIS IS THE third installment in a series of articles in which I provide some tips for getting the most out to mediation. In this series, I will cover the following three topics:

Topic 1—Positioning a case for mediation Topic 2—Using the mediator effectively. Topic 3—Negotiating effectively.

This article is part 3 of Topic 1. In this article, I discuss mediator selection—choosing the right mediator for your particular dispute.

KNOWLEDGE OF MEDIATION A qualified mediator will have undergone formal training in the process of mediation, which is both a bit of an art and a science. Trained mediators will have undertaken tens if not hundreds of hours of instruction and practice to learn how and why the mediation process works and a variety of approaches for working with the parties to a dispute to help them achieve a resolution. Subject matter expertise, while helpful, is generally insufficient without formal training in mediation. Indeed, an untrained mediator may actually do more harm than good, including driving the parties farther apart or causing one or both parties to become more entrenched in their adversarial position.

RES IPSA LOQUITUR STYLE There are generally two kinds of mediators: facilitators and evaluators. Facilitators promote communication between the parties in order to help them reach a mutually acceptable resolution. The pure facilitator refrains from expressing any opinion on the merits of the case. Evaluators will express an opinion on what a case is worth or at least on the merits of positions. The best mediators will use an approach that draws upon both styles as the needs of the case require.

FAMILIARITY WITH PARTIES OR COUNSEL There is sometimes a misconception that the mediator should not have had any prior relationship with the parties or their counsel. Although the proposed mediator should disclose any such relationships, no ethical rule precludes the use of a mediator who knows or has dealt with one or more of the participants. Many litigators believe that the best mediator to use is the one that the other side knows and wants since the mediation is more likely to succeed if the adversary trusts the mediator.

FOCUS ON SETTLEMENT Being an effective mediator often requires an extraordinary amount of patience, and many cases will not settle at the first meeting. The mediator must be prepared to follow up and to work with the parties until the case is resolved.

SUBJECT MATTER EXPERTISE Lawyers are generally looking for a mediator who has expertise in the type of case at hand. The lack of such expertise will create a steeper learning curve for the mediator and may put him or her at a disadvantage when trying to evaluate positions. Keep in mind, however, that subject matter expertise without adequate process skills will not make a person suitable to be a mediator.

FEES What a mediator charges should not be the primary factor used when choosing a mediator, but it is something to consider. There are many excellent mediators whose fees are reasonable.

FORMER JUDGE OR NOT Retired judges often are excellent mediators and there are excellent mediators that are not retired

2 1 judges. While a retired judge carries a credential that indicates experience and authority when it comes to disputes, a retired judge’s experience on the bench alone is not necessarily sufficient to produce a good mediator. A judge’s primary role is to make decisions for the parties—to make rulings and tell the parties how their dispute is being resolved. Many judges also conduct settlement conferences, which can be much like a mediation. As with any mediator, whether a retired judge will be a good mediator for your case depends on their training, experience, temperament, and subject matter expertise.

About the author: Bernie Barmann, Jr. is a trained mediator who conducts mediations online as well as in person. He has helped litigants resolve matters they didn’t think could be settled and helped people resolve disputes before they’ve ripened into litigation. He brings to bear nearly 30 years of broad litigation experience as a business trial attorney effectively representing companies and individuals in a wide variety of civil disputes in state and federal courts throughout California and in other jurisdictions. He is also Secretary of the KCBA and formerly taught Civil Procedure at the Kern County College of Law. For more information visit bbarmann.com or kuhsparkerlaw.com

SAFEGUARDING YOUR PRACTICE

AGAINST WIRE FRAUD

Have you received a request for a wire transfer? Before moving forward with disbursement of any funds entrusted to you, consider the following:

• Receiving an urgent email to disburse funds. • Communication that does not match original wire instructions. • Slight variations on an email address of the sender. • Communication request via email only (without verbal instructions). • Messages from the sender using incorrect spelling or odd phrases. • Incoming phone call requests from an unfamiliar contact number. • Request for an urgent wire transfer after receiving an unexpected check from your client. Red flags:

Our strength is your insurance

Wire fraud generally involves an attempt to defraud your firm, your client and could damage your reputation; therefore consider implementing the following:

• Ensure well-defined protocols are in place for all wire transfers. • Initiate verbal authorization no matter the urgency of the request. • Institute electronic security and authentication controls. • Educate employees on the risks associated with phishing schemes. • Refer back to your clients’ primary cotact information. • Regularly update spam filters and firewalls. • Before initiating any wire transfer, always call your client. Preventative measures: