The document discusses the process of selecting a mediator for litigation, emphasizing the importance of evaluating three key criteria: competence, comfort, and cost. It outlines specific factors to consider for each criterion, such as the mediator's experience, expertise, communication skills, and the physical mediation environment. The authors illustrate their points through a case example involving a wrongful death complaint related to aviation, highlighting the need for a mediator with relevant industry knowledge.

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© Tetrault Law, P.A., May 2012
TETRAULT LAW, P.A. Four Collingville Court
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SELECTION OF A MEDIATOR
Larry and Laura, litigators for the plaintiff and
defendant, were browsing through their
LinkedIn connections while talking on the
phone, searching for a mediator known to both
of them. They had a matter that was
uncommon for them, and they wanted to find
a mutually acceptable mediator to help them
reach a settlement. The plaintiff was about to
file a wrongful death complaint against an aviation maintenance facility, as well as the
owner and pilot of the aircraft that had disappeared over the Colorado mountains in a
snowstorm.
In banking, the loan officer looks to the applicant and evaluates the 5 C’s of credit. We
have learned that these are Character, Capacity, Capital, Collateral and Conditions.
When buying an engagement ring, the buyer looks to the 4 C’s of diamonds. We have
learned that these are Cut, Color, Clarity and Carat weight. However, what are the
criteria for finding the “right” mediator? Perhaps the answer is the 3 C’s of Mediator
Selection: Competence, Comfort and Cost
COMPETENCE
No one denies that competence is essential to a satisfactory mediation. Evaluating
competence after the mediation event is quite easy, while evaluating it before
experiencing the process can be quite difficult. This is the fundamental reason litigators
regularly use a mediator with whomthey have had successful events in the past. When
litigators decide to use mediation on behalf of their clients, they often simply look for
commonality between each litigator’s trusted mediators.
However, what if there is no common mediator on his or her list that seems “right” for
this matter? What are the elements of competence that should be evaluated?
• Experience. Does the potential mediator have experience in the industry or
specific field deemed to be paramount in this matter? Experience itself comes
from living in the environment and having exposure to best practices as well as

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© Tetrault Law, P.A., May 2012
incompetence. This element can usually be determined from a background
review of a mediator, and perhaps a specific interview related to the current
matter.
• Expertise. Does the potential mediator have expertise in the industry or specific
field? This goes beyond experience, and suggests study of the issues and practice
of the relevant skills. Expertise is the combination of ability, skills, and
knowledge that is unique, and recognized by the public. This recognition may
flow from credentials, education, training and publication. For example, everyone
has experienced weather phenomenon, but few have studied what causes major
weather events. Only an educated and trained person is qualified as a
meteorologist. Expertise is important in helping the parties communicate about a
dispute.
• Intelligence. This is a difficult element to evaluate, but there are clues in the
mediator’s background. Did the mediator earn degrees from highly respected
universities, with honors? Did the mediator achieve success through leadership
positions in organizations? Analysis of the mediator’s Internet history will
provide clues, if not direct answers to the question of his/her intelligence.
• Mediation Skills. A mediator will likely have the requisite certification.
However, the mediator must also have the skill to establish rapport with both
parties, to suggest discussion areas and ideas that might lead to a settlement and to
think and act quickly. This is difficult to evaluate, and usually comes from
persons who have used the mediator in the past.
Absent a referral from a trusted colleague, the Internet is a resource for investigating the
background of potential mediators. LinkedIn can be especially useful in evaluating the
mediator’s education and career path. The Internet never forgets, and can identify
information about a potential mediator in a few minutes. Then, a phone call or meeting
can confirm that an individual is appropriate for this mediation.
COMFORT
The mediation process can be very stressful, especially for the parties. Even the attorneys
will experience some stress in this attempt to resolve the dispute. Take action to
minimize stress from external factors – those not directly related to the negotiation.
Among these factors are:
• Cultural “fit” with the mediator. The attorneys should investigate and determine
whether the style of the mediator is consistent with the personalities of the parties
and the attorneys. The mediator should be able to articulate a style, and express
flexibility to match the people and situation during the mediation.

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© Tetrault Law, P.A., May 2012
• Facility. Too often overlooked, physical space can enhance or diminish the
quality of the discussion. The conference rooms must provide for confidentiality.
They should also have proper temperature controls, since either too hot or too
cool can inhibit the discussion. Since the parties will sit for several hours, the
chairs must be comfortable. The
facility must also have technology –
wireless Internet, high quality
speakerphones, printers, copy, fax
machines, and similar products
available to the participants. In short,
the facility where the mediation will
take place should be professional and
properly equipped.
• Food. During extended mediations, food can become an issue. People are unable
to function at their best if distracted by hunger or thirst. The facility should
provide for snacks and drinks during the mediation. If the mediation will extend
through lunch, then the facility must have the capability of providing concierge
service for a midday meal. The best mediation decisions happen when all the
parties are physically and mentally at their best.
Establishing an environment free of distractions, which permits the participants to
concentrate on the issues and objective at hand, must be a consideration before
scheduling mediation.
COST
There are many cost considerations to evaluate when scheduling mediation. Perhaps the
most obvious consideration is the mediator’s fee. However, this fee is insignificant when
compared to the cost of the parties’ attorneys, the location of the facility, travel time and
expenses, and the efficiency of the mediator in leading the discussion.
• Mediator’s Fee. The mediator’s hourly rate is generally public knowledge, and
can be found on the mediator’s website, or the mediator’s scheduling website.
For civil mediation, the hourly rate ranges from $225/hr to over $600/hr. The
hourly rate range for attorneys representing clients is likely within this range. The
cost of the mediator is shared between the parties, and each party is responsible
for the cost of its attorney. Typically, the mediator will require a 2-hour
minimum charge, and mediations generally conclude within one day.
• Facility expense. Some mediators have dedicated facilities that are provided at no
cost to the participants. Other mediators rent nearby facilities for their
mediations. The rental charge may be paid by the mediator, or charged to the
parties.

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© Tetrault Law, P.A., May 2012
• Travel time. Some mediators charge their hourly rate for their time to travel to
and from the mediation site. Others charge ½ their hourly fee, while others do not
charge for time in transit.
• Travel expenses. Some mediators charge travel expenses. For a local mediation,
this is usually a per mile charge. In some cases, travel expense may include
airline or private air travel costs, overnight accommodations, meals and rental
cars. Other mediators, with a largely local practice, do not charge travel
expenses.
As Larry and Laura reviewed the list of mediators, and the issues they believed to be
relevant to their civil dispute, it became clear that they wanted someone knowledgeable
about aviation. Moreover, they wanted someone with particular expertise in general
aviation, the segment of private aviation where the owner and operator is often the pilot-
in-command. Issues likely to emerge here are the Federal Air Regulations and their
application to the flight and maintenance operations, the capability of the pilot and the
aircraft to fly in bad weather over mountainous terrain, the weather itself and its
relationship to the mission.
In reviewing the possible neutrals to lead the mediation, they located a local attorney
whose practice focused on civil mediation. He had over 6500 hours of flight experience
as a pilot and instructor pilot in general aviation aircraft. After his time in the USAF,
where he had earned his pilot wings, he had been in the computer industry and
understood the technology that has permeated the cockpit during the recent past. After a
phone interview, they selected him because he had the experience and expertise required,
could provide professional facilities near their office in greater Orlando and would
provide good value at $280/hr with no charges for the facility or travel.
SUMMARY
Selecting a mediator for a particular matter may require searching beyond the normal list
of neutrals used by the litigator and the firm. In those instances, the litigator should
evaluate closely the elements of competence, comfort and cost. Only then will the
possibility of a successful mediation become a reality.
Albert R. Tetrault
Attorney & Mediation Counsel
Florida Supreme Court Certified Circuit Civil Mediator (27841R)
May 10, 2012