How to Choose a Mediator
When it comes to choosing who to mediate your dispute, you will obviously do whatever is best for your company and your relationship with your commercial partners. I can’t make that decision for you.
​But what I can do, having been involved for many years in resolving multinational disputes, is tell you what I would do if I were still in your shoes.
How to choose the most suitable mediator
1. Pick someone who knows your industry inside out
What companies think a dispute is about is often not the real issue. So choose someone who can see the bigger picture, spot gaps, and uncover what’s really at the heart of the conflict.
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Questions are powerful. But only if you know the right questions to ask and can put things in perspective.
Yes, there is a school of thought that says any skilled mediator can effectively guide parties to resolution. Yes, there is such a thing as the curse of knowledge. And yes, some mediators believe it's not necessary for them to know anything in advance about an industry. But when millions – perhaps billions – are at stake, it pays to work with an industry insider who can quickly grasp the context, dynamics, and potential ramifications of your dispute. For complex disputes between multinational consumer electronics and technology companies – particularly for issues such as epidemic failures, breaches of warranties, non-compliance with specifications, late deliveries, withholding / set-off / late payments and non-compliance with product development milestones or failing to meet acceptance procedures – it pays to work with a mediator who understands the intricacies of your world. A world in which things are in motion all the time. Even during a dispute situation. Choose someone with a technical background who appreciates how a dispute can evolve and create side effects. Someone who can help you reach an interim solution to collateral disputes, while simultaneously working to address the underlying issues.
The cultural backgrounds of business executives and their organisations – the characteristics, behaviours, customs, social norms, traditions, and values that are specific to their particular corporate culture – can have a profound influence on how they acquire, maintain, and end commercial relationships.
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That’s why it’s important to work with a mediator who is emotionally intelligent, not just legally savvy or commercially minded.
2. Pick someone who understands cultural idiosyncrasies
Choose someone with cross-cultural experience and sensitivity. Who understands relationships and the important role that local values and practices play in avoiding and resolving cross-border disputes. In an increasingly globalised world, mediators need to have the tools to adopt a hybrid approach to issues as part of a transnational collaborative process. So choose someone who can reconcile the chorus of voices within different functional teams in your organisation and other stakeholders.
Real resolution starts with uncovering the root causes of a dispute. That means going beyond the narrow legal issues a court would focus on.
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Any mediator can read position statements or a selection of key documents from court proceedings (if a claim has already been filed). For disputes in some industries or some walks of life, that might be enough. But when it comes to high-value, consumer electronics or technology disputes, you need to understand the parties involved, the context, and what’s really at stake.
3. Pick someone who devotes time to prepare
Anyone can see what’s on the surface. What you want is a mediator who can also see the iceberg below the water. Choose someone with a detailed discovery process. Someone who invests time in getting to know each of the participants – the culture within your organisation, the dynamics within your team, the personalities and perspectives of different stakeholders and how the dispute has affected you and your company's prospects.
