From the Other Chair: A Lawyer's Guide to Mediators

What to look for in a mediator, from someone who's sat in your chair.

Before becoming a full-time mediator, I spent more than 27 years as a lawyer representing clients in civil claims in Florida. My chair shifted between both Plaintiff and Defense work, while at my own small law firm and then at a large firm. No matter what chair I sat in at the time, picking a mediator was one of the most consequential decisions in a case. Why is this? Because only 1.2% of all civil cases in Florida are actually resolved at trial. A good mediator can help you settle a case that should be settled sooner. An ill-suited mediator can prolong the case, adding time and expense if it does not settle.

There have been times in my legal practice when I agreed to a mediator and walked out of a long day wondering whether the person in the middle had helped my case or simply ran out the clock. While not all cases can be settled, I at least expected a mediation in which the parties engaged in substantive dialogue on the issues, exchanged information, ideas, and options, and walked away with a possible roadmap for a future resolution.

So I want to start this lawyer's guide to mediators where it belongs: at the table, from the perspective of the lawyer whose client is counting on the day to go well. This is not a piece about how mediation works. You know how it works. It is about how to tell, before you commit your client's one real shot at resolution, whether the person you are about to hire will earn it.

Lawyer's Guide to Mediators: It is not the résumé. It is the fit.

Every mediator worth considering has the credentials. In Florida, you have a choice between a mediator who has been certified by the Florida Supreme Court or those who choose not to be certified. The primary difference between certified mediators and those who are not is that certified mediators are bound by the Florida Rules for Court Appointed and Certified Mediators. These rules require certain processes, standards, and ethical conduct for all mediations, which are overseen by the Florida Dispute Resolution Center and the Florida Supreme Court.

Certification by the Florida Supreme Court indicates that someone has the requisite training, experience, and ethics to serve as a mediator. That is worth something. But certification tells you a person is qualified. It does not tell you whether this particular mediator will help your case, with these parties, on this day. Those are different questions.

The best mediator on paper can be the wrong mediator for a given dispute. Here is what I have learned to actually look for as a lawyer, and how to check for it rather than take it on faith.

They know the law, and they prepared for your case

You can tell within the first five minutes whether a mediator read the file. The prepared ones refer to the actual posture and the real exposure, and ask you for things that are important to the case but do not appear in the court docket. The unprepared ones ask you to walk them through the entire case while the meter runs on your client's dime and your client's patience.

I also want a mediator who knows the subject area. A mediator fluent in the kind of case you are bringing, the way the damages really work, where these disputes usually break, and what a jury tends to do with them carries credibility and expertise that your client will appreciate.

They can be trusted, and they follow the rules

A mediator can be brilliant and yet fail the moment one side stops trusting them. The ones who succeed are trusted in both rooms at once. They are ethical; they hold confidences; they honor the rules they operate under; and they do not become a quiet advocate for the position they privately favor. The instant a client decides the mediator is "on the other side," the day is effectively over.

This is not the same as having no opinion or no spine. It is that both sides believe they are getting the same honest treatment. Watch how a mediator handles your client's worst fact. You have the right person if they name it to you candidly, and you trust they are naming the other side's worst fact just as candidly across the hall.

They listen, they communicate, and they build rapport with everyone

Some of the hardest moments in a mediation have nothing to do with the money. A client needs to be heard and understood before they can hear anything. The best mediators are genuine listeners, not just nodding their heads. They are curious and interact.

They are also good communicators and, frankly, likable. A mediator who can build rapport with your client, the other client, both lawyers, and the adjuster on the phone. This is something that money cannot buy. People are willing to move for someone they like and trust. Friendliness here is not a soft skill. It is leverage and a tool that opens closed doors.

They solve problems and coach the negotiation

This is the heart of it. The mediators I trust treat the case as a problem to be solved, not a position to be split or a number to be divided. Mediation should be more than haggling at a bazaar. They encourage both sides to exchange information and options so that everyone can make a genuinely informed decision. A party who understands the real risks and the real alternatives will often get to a reasonable place on their own.

That is also the answer to the question every litigator quietly carries into the room: will this mediator help the other side get realistic? The good ones do. Not by imposing a verdict, but by acting as a skilled negotiation coach who helps each side run an honest risk assessment. The goal is an objective analysis, grounded in the facts, the law, the evidence, and the real probabilities of what can happen at trial. Not a subjective or arbitrary number, and not the mediator's gut. They test assumptions with hard questions and reexamine information each side has been ignoring, so that the parties weigh whether settlement or trial makes more sense for them.

They are persistent, and they follow up

Cases can settle early or late in the day. They also settle three days later, on a phone call the mediator made because they were not willing to let an impasse be the last word. The mediators I respect do not quit until the parties quit. They keep working, pushing, and exploring options long after a lesser mediator would have declared an impasse and packed up.

And the best of them follow up after the mediation session ends. They check back with both sides to preserve the hard work and progress made during mediation. Sometimes clients just need more time to consider options and consider what life will look like going forward without a settlement. When you hear that a mediator "doesn't give up easily," that is not just a personality trait; it is a settlement trait.

A word on "evaluative" mediation

You will hear mediators described as "evaluative" or "facilitative," often as if they were two equal styles to choose between, one that is a hard approach and one that is a softer approach. In Florida, that framing is misleading, and it is worth understanding why before you select anyone.

An evaluative mediator will voice opinions as to the merits of a party's case and whether, in their wisdom, you will win or lose. Some lawyers and parties may like this. But I guarantee you no one likes being on the wrong side of that evaluation.

I personally had that experience in one of my cases as a lawyer. As it happened, a mediator unexpectedly made a statement to my client and me in caucus that the case was terrible and needed to be settled on the terms the other party was offering. No one requested that the mediator evaluate the case, which created distrust in the mediator's neutrality. My client was angry and confused. Not helpful. The result was a quick impasse. However, the mediator was completely wrong about the case and its facts, and it ultimately settled for many times more than what was offered at mediation. Needless to say, I never used that mediator again.

The bedrock principle of mediation under our rules is party self-determination. The parties, not the mediator, decide the outcome. A mediator who pushes their own valuation of the case, tells the parties what they think it is worth, and leans on them to accept it is operating against that principle. That kind of pressure is often deemed coercive. For that reason, the rules governing certified mediators in Florida do not sanction "evaluative mediation" as such. A mediator can certainly offer an evaluative process, a case evaluation, a neutral assessment, but under our rules it cannot be called mediation.

The practical takeaway for choosing: do not look for the mediator who will hammer the other side with a subjective opinion of what the case is worth. Look for the one who can guide both sides through an objective assessment, one grounded in the facts and the law rather than the mediator's own arbitrary evaluation. That is the harder skill, and it is the one that actually honors mediation.

The Florida wrinkle: you usually have to agree

In most of our cases, you do not simply pick a mediator. Both sides have to agree on a mediator. That changes the whole exercise. You are not only evaluating a mediator for your case; you are also vetting the name the other side proposes to you.

So run every name on your mediator list, yours and theirs, through the same questions. When the other side suggests someone, find out whether that mediator has a reputation for genuine even-handedness regardless of who proposed them. When you propose someone, be ready to make the case that they are fair and effective with everyone, because a mediator the other lawyer trusts is a mediator who can actually help the other lawyer's client get to yes. The most effective name is often the one both sides can accept and respect.

What it comes down to

After nearly three decades, my own measure is simple. The best mediator is not the one with the longest list of credentials or the most popular name. Rather, be open to finding the right mediator for your case. Be open to new names and look for the right fit. A mediator who is prepared, neutral, knows the subject matter, can be trusted, is a good listener, builds rapport in the room, is persistent, never quits, and follows up. Once you have watched a real one work, you know exactly what you are looking for.

Less dispute. More resolution.

Patrick Russell

Florida Mediator

Florida mediation and dispute resolution

I write all of my articles. Neither the ideas nor the writing is, has, or will be created by AI, and I am proud of that.

Meaningful Mediation is Ethical, Mindful, and Strategic

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