There is always some discussion within the legal industry about the ridiculously high rates that some lawyers charge their clients. Some of the most expensive lawyers in the country may charge their clients a few thousand dollars an hour for their time, which is many times more than most other solid lawyers would charge for similar work. In my experience, the hourly rates of some mediators can be even more than high-priced lawyers. Although mediators likely need to kick up fees to their mediator service in many instances, I have participated in mediations in which mediators have effectively charged several thousand dollars an hour for the mediation. Of course, mediation fees are often split between two or more parties, but this can still be a significant amount of money for most clients. Are super-high-priced mediators really worth the money?
I have participated in dozens of mediations throughout the course of my career, and most of the time, mediations are similar regardless of whether the mediator is charging exorbitant fees. I practice law in a few jurisdictions in which free mediation services are available. In certain instances, the mediation services are provided by court officers, and in other situations, individuals volunteer to provide free mediation time. In nearly each instance in which I participated in free mediation, I was awed by the skill of the mediators, and thought that the mediators did a great job helping to resolve the cases.
Some jurisdictions in which I practice have programs through which mediators offer discounted mediation time so that the parties are more willing to mediate their dispute. In a few of these jurisdictions, the mediators only charge a few hundred dollars an hour, which very likely could be less than the lawyers charge their own clients. In each of these situations, I was satisfied with the services of the mediator, and many of the cases that were handled by mediators providing discounted services settled because of the solid work of the mediators, the parties, and the attorneys. All of these experiences have convinced me that in many situations, using free or discounted mediation services is a solid way to resolve a case.
However, every so often, co-defendants or adversaries insist that we mediate cases with a pricey mediator who may charge as much as 10 times the rate of a discounted mediator. My co-counsel and adversaries often relate that they had bad experiences with court-appointed mediators in the past, and they are familiar with the services offered by a superstar mediator. They reckon that if a case settles, mediation costs would be worth the expense since the mediator helped resolve a dispute which could have drained parties of resources.
Sometimes, there is indeed something special about high-priced mediators. I worked with an up-and-coming mediator many years ago in a jurisdiction in which I practice, and he was hard to book. When I attended a mediation with this person, I soon discovered why. This mediator has unbelievable energy and charisma when it came to resolving cases. The mediator could bond with anyone instantly, and could forge trust with only a minimal amount of work. Moreover, this mediator could read a room and glean unspoken clues in a way that was really important to resolving cases. The rate of this mediator has climbed precipitously over my career, and it is likely because people could sense what I could sense: this mediator was special, and his fee was worth the cost since he could settle cases effectively.
However, I have also worked with mediators who charged thousands of dollars an hour, and seemingly did a worse job than any other mediator I had ever seen. Earlier in my career, I worked with a mediator who was charging an arm and a leg for the mediation. This mediator did not seem committed to resolving the case, and indeed, we had paid him up front, so he might have not had much incentive to settle the matter. Even though the part-day mediation was costing more than what most people would be lucky to earn in a month, the mediator spent significant time on his phone and did not lay the groundwork to build trust that could be important to resolving the case. The experience showed me that just because a mediator charges thousands of dollars an hour does not mean that the mediator is particularly effective.
In any event, I am not willing to make a blanket assertion that high-priced mediators are never worth it. Some high-priced mediators are extraordinarily talented, and in major cases, they can be well worth the cost. However, for the vast majority of run-of-the-mill cases, free mediators or those who charge discounted services are more than adequate. I have had superb experiences with mediators who charge many times less than costly mediators, and it might be worth it to protect a client’s bottom line by engaging more affordable yet competent mediators for most matters.
Jordan Rothman is a partner of The Rothman Law Firm, a full-service New York and New Jersey law firm. He is also the founder of Student Debt Diaries, a website discussing how he paid off his student loans. You can reach Jordan through email at firstname.lastname@example.org.
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