There are a tremendous number of articles in publication on the steps to take and the factors to consider in choosing a mediator. Simply enter the words "choosing a mediator" on your search engine and see what the worldwide web provides you. There are also books on alternative dispute resolution, law review articles, bar journals, newsletters, periodicals and various publications of alternative dispute resolution (ADR) providers which deal with this important topic.

The underlying approach to choosing a mediator to help resolve a maritime dispute would be no different than in non-maritime matters. It would be hard to argue, for example, with the five steps set out in the Department of the Navy publication entitled "Selecting a Mediator; A Consumer Guide to Selecting a Mediator." Those steps are: (1) Decide what you want from mediation; (2) Get a list of mediators; (3) Look over the mediators' written qualifications; (4) Interview the mediators; and (5) Evaluate the information and make a decision. This publication informs us, after all, that it is "for anyone looking for a mediator."

The question arises, are there additional steps or considerations which the maritime practitioner should take in choosing a mediator? The purpose of this article is to suggest that there are additional considerations, especially in connection with steps 1 and 5, deciding what you want from mediation and evaluating the information. Specifically, the maritime advocate must decide whether he wants his mediator to be more evaluative or more facilitative, to have subject matter expertise, process expertise or both, and to be a lawyer or a non-lawyer. Even though these inquiries are present in non-maritime disputes, they take on additional importance because of the uniqueness of maritime law and the important part arbitration plays in the resolution of maritime disputes.

Several months ago I was discussing an upcoming mediation with a prominent maritime lawyer who has vast experience with litigation and arbitration, but very little experience with mediation. He related that he had recently had an enjoyable experience serving as a mediator for the first time. He told me that he listened to both sides, then in a private meeting with one of the sides told them essentially that they had no case at all. As a result of his advocacy and undoubtedly because of his stature, the dispute settled. In his upcoming mediation, based on that experience as a mediator, he was looking for a mediator who would side with him, who shared his point of view on the law, who would do as he had done and tell his opponents that they had no case.

My colleague was seeking an evaluative mediator, one who would assess the strengths and weaknesses of the parties' positions and share with them his views, perhaps even one who would seek to impose his view on the parties by suggesting settlement parameters and trying to move the parties within them. The counterpart of the evaluative mediator is the facilitative mediator, one who focuses more squarely on the parties' interests and attempts to craft a resolution with the participation of both parties and without necessarily revealing his own thinking about the parties' strengths and weaknesses.

Even an evaluative mediator would be cautious about telling a party that it had no case and in that fact lies the first point: choosing a mediator is not like choosing an arbitrator. In a maritime arbitration, each party seeks to appoint an arbitrator with commercial experience and hopefully one who shares its point of view. In choosing a mediator, one should avoid a person who has taken a forceful stance on one side or the other of issues that will arise during the mediation. There is a significant risk that such a person would not be neutral and there is also a potential credibility issue. The party arguing against the mediator's announced position might feel that the mediator was biased, was not listening, or was not working the issues equally for each side, a situation that could easily undermine the effectiveness of the mediator.

Although the considerations in the choice of a mediator are different from those in the choice of an arbitrator, there are circumstances where an evaluative mediator might be useful. One of those is where the attorneys for the parties are having a particularly difficult time evaluating the claim or claims. Another is where there are claims and counterclaims and both parties expect the other to write a check. A third situation is where one or both clients are unrealistic in their settlement expectations and a strong, evaluative mediator is needed to bring the parties together. Conventional wisdom has it that retired judges are often evaluative, having been used to making decisions and imposing them on the parties before them.

If the parties are not in need of an evaluative mediator, would it be better for them to seek a mediator without a maritime background, someone who has considerable experience with the process of mediation, but a clean slate as far as the issues go? The answer to that question depends on the nature of the dispute. There are a few generic disputes within the maritime industry which almost any experienced mediator could handle. An example would be a simple dispute over the amount of a bill for services rendered. More often, however, a mediator in a maritime dispute should have a maritime background. He or she should understand maritime remedies such as arrest and attachment; he should understand the vocabulary of shipping; he should be familiar with the business relationships into which shipowners enter; and in some cases he should be familiar with shipboard operations and the basics of navigation. Having this background knowledge saves the parties the time it would otherwise take to educate the mediator and often enables the mediator to provide the parties with fresh insight into the strengths and weaknesses of their positions. There is simply a deeper level of understanding when the mediator is familiar with the subject matter of the dispute.

Since many disputes also involve legal issues, one wonders whether the mediator should be a lawyer, in addition to having a maritime background. This is a particularly pertinent question in the maritime field because of the prominent role played by non-lawyer "commercial men" in the resolution of commercial disputes through arbitration. In order to answer it, a little digression is necessary.

Perhaps the most well-known book on negotiation is Getting to Yes, by Roger Fisher and William Ury. Professors Fisher and Ury, of Harvard University, have propounded certain principles of negotiation which act as both structure and guidelines to their theory of "principled negotiation." One of these principles is that parties engaged in negotiation should clearly understand what their Best Alternative to a Negotiated Agreement or "BATNA" is. Your BATNA is your walkaway alternative; your second best option; the direction you take if negotiation fails. For example, when an adjuster for a cargo underwriter and a P and I claims correspondent are unable to reach an agreement on the value of a cargo claim, the cargo underwriter knows that his BATNA is to retain counsel and place the claim in suit in an appropriate forum. The more viable one's BATNA is, the more strength one has in negotiation.

In deciding whether a lawyer or a non-lawyer is most suitable to serve as the mediator for a maritime dispute, one should consider one's BATNA and, in particular, the forum in which the matter would be heard or in which it is pending. It is very helpful if the mediator has had experience resolving disputes in the forum where a claim will be adjudicated if mediation fails. The three most common such forums are: non-jury trials in federal court, jury trials in federal court and commercial arbitration.

If the dispute will ultimately be submitted to a jury, a maritime lawyer is the best choice for a mediator. He should be familiar with the particular nuances of jury persuasion, the sometimes unusual ways in which juries look at disputes, the Federal Rules of Evidence, and, if possible, jury verdicts in the community in which the trial will take place. The kinds of cases that come to mind in this category are personal injury cases such as third-party claims under Section 905(b) of the Longshore Act, Jones Act cases, and passenger claims against cruise ships.

If the dispute is one which would be ultimately submitted to arbitration, the important thing is that the mediator have some understanding of arbitration, that he be a commercial pragmatist, that he be a good listener, and that he be trained and experienced in the process of mediation. Both lawyers and non-lawyers would be suitable mediators in this category of cases, which would include charter party disputes, ship construction and repair claims, and other matters typically submitted to New York or London arbitration pursuant to contractual arbitration clauses.

In the last category, those claims which would be tried to the court sitting without a jury, both lawyers and non-lawyers could be effective mediators. The choice would depend on several factors. Is the dispute mostly commercial in nature or does it involve difficult legal issues? Is the dispute being mediated in the context of an ongoing relationship of the parties or are the parties merely strangers brought into contact by some unfortunate event? Are there just two parties to the dispute or are there multiple parties in multiple jurisdictions with claims, cross-claims and counterclaims against one another? The more complex the case is procedurally and legally, the more helpful an attorney mediator would be in assisting the parties to sort them out. Examples include carrier bankruptcies, oil spills, limitation proceedings, major collisions and allisions, and complex cargo claims. Where the claims are less complex and more commercial in nature and especially where such claims involve parties with an ongoing relationship, either lawyer or non-lawyer mediators should be suitable. Examples of such claims include routine cargo claims, container leasing and repair claims, collection matters, and common maritime business disputes.

Sometimes attorneys looking for a maritime mediator have a difficult time finding someone with just the right combination of mediation experience and substantive knowledge of the particular kind of claim at issue. In those instances, if the size of the claim would warrant it from an expense standpoint, one might consider using both a mediator with significant process expertise and an expert with a high degree of technical knowledge. The mediator would retain the expert to assist him and he would function as a neutral expert. This kind of combination would be particularly useful where the parties are relying heavily on competing experts. An example would be a collision involving complex navigational issues. A neutral navigational expert and an experienced maritime mediator would be a formidable and effective team. There are a myriad of other opportunities for using experts to assist in the mediation of maritime disputes.

As the number of experienced mediators continues to grow, disputants will be able to be more and more specific about the substantive knowledge which they expect a mediator to possess. There may be a time in the not-too-distant future when the ranks of maritime mediators have grown to the point that parties can chose a mediator based on his sub-specialty. Hopefully, the suggestions set forth above will assist the maritime advocate in seeking a mediator with the right combination of maritime background, legal knowledge and process experience to be effective in resolving those maritime disputes with which we are confronted on a daily basis.