Proposed changes to the mediation rules, to require mandatory credentialing of mediators, recently spilled over to the pages of the Daily Business Review. Proponents of the proposed rule change argued that requiring mediators to become certified—completing training, attending continuing education classes, and being subject to specific rules of conduct—would ensure that mediators “are not operating in the 'Wild West' without ethical standards.” Opponents countered that this would foreclose parties from selecting “evaluative” mediators—“tell-it-like-it-is,” “reality check” neutrals—who use their experience to evaluate cases and render definite opinions as to their merits.

While this debate over mediation rules, certification, and styles may have resonated with experienced mediators and students of the craft, the reality is that most litigators choose a mediator without giving much thought to these academic discussions. To the extent most lawyers give fleeting thought to mediation styles, they may rely on popular tropes and stereotypes, such as “bulldog mediator,” or “mediator with gravitas,” or maybe someone with substantive experience in the subject area of law. Most of the time, they frankly just wing it, picking a mediator based on relationships or perceived reputation and stature.

But as trials become less frequent and mediation increasingly becomes the process by which cases are resolved, litigators must re-think how they choose their mediators. Winging it will no longer do.

Lawyers must become as sophisticated in how they choose their mediators as they are in how they prepare for trial. At minimum, litigators must become familiar with the three most commonly discussed mediation styles, know which style is employed by the proposed mediators, and be ready to explain their choice to their clients.

First, there is the style favored by the Florida Supreme Court's mediation certification program. The Florida Rules for Certified and Court-Appointed Mediators govern mediators who become certified. Rule 10.370(c) prohibits certified mediators from offering a “personal or professional opinion as to how the court in which the case has been filed will resolve the dispute.” Instead, Rule 10.310(a) says that “a mediator's responsibility to the parties includes honoring their right of self‐determination; acting with impartiality; and avoiding coercion, improper influence, and conflicts of interest.” Through probing questions and dialogue, the certified mediator attempts to facilitate the parties to reach a settlement on their own terms. The mediator is in charge of the process but the parties control the outcome. This style of mediation is sometimes referred to as facilitative mediation.

In contrast to facilitative mediation, the evaluative mediator evaluates the merits of the case and will “tell it like it is.” The mediator openly points out the strengths and weaknesses in the parties' cases, and gives definitive opinions as to how the case will likely turn out in a trial. Many trial lawyers naturally gravitate to this mediation style because it most resembles what they know—a trial—with the mediator acting almost as “judge,” rendering an evaluation—or ruling—regarding the case.

There is also a form of mediation referred to as transformative mediation. This is a form of conflict resolution described by Robert A. Baruch and Joseph P. Folger in their 1994 book, “The Promise of Mediation.” This form of mediation emphasizes personal empowerment and strength, and recognition of the other party's positions, over the result of the process. There are similarities between transformative mediation and facilitative mediation because in both cases, the power over the outcome rests in the parties, not the mediator.

While there are many full-time mediators who strictly adhere to a defined mediation style, many others purport to practice a blend of these styles, or to vary their styles depending on the circumstances. On the other hand, many civil litigators who also happen to mediate cases from time to time have never given much thought to these styles. In many cases, they are not even aware that there are mediation styles—they just go from the gut.

To best meet the needs of their clients, litigators must understand the pros and cons of these styles, and know which style the proposed mediators favor. For example, having the case independently evaluated is perhaps the strongest argument for the “tell it like it is” approach. But the middle of a settlement conference may not be the best time for a client to receive this key information for the first time.

Clients should also be skeptical of an evaluation based upon a mere mediation presentation. Their own lawyers have spent many hours poring over case documents, considering the credibility of witnesses, and conducting other lawyerly tasks in order to meaningfully evaluate their case. A mediator is able to do few—or none—of these things in a mediation.

In addition, the abrasive nature of a “tell-it-like-it-is” mediation could work against reaching a settlement. No one likes being told they are wrong or being put on the spot, and this could cause parties to recoil from making necessary concessions.

Facilitative and transformative mediation approaches also have benefits and drawbacks. Parties are more likely to make good settlement decisions if they are empowered to reach their own conclusions about the benefits of settlement without being made to feel like settlement is being rammed down their throat. But an ineffective mediator can permit the discussion to devolve into being simply about the costs of litigation, or about shuttling offers and counter-offers back and forth, without adding any value to the settlement process.

In summary, no litigator worth their salt would rely on mere hunches, instinct, and old habits to try a case. Good trial lawyers properly prepare for trial by focusing on both the substance of their case, and the trial tactics, strategies, and philosophies which they think will work best. Clients should demand the same level of thought and preparation for their mediations—not just as to the opening statement, but also as regards the style of the mediation itself.

Oscar A. Sanchez is a Florida Supreme Court civil circuit and appellate certified mediator with OASMediation in Miami, where he focuses on being a mediator, arbitrator and court-appointed special magistrate. Previously, he was a civil litigator and trial lawyer.