Inside Insight to Major Companies’ Mediator Selection

The Sept. 12 International Institute for Conflict Prevention and Resolution Mediation Committee meeting provided a members-only Corporate Counsel Roundtable program that confronted what corporate ADR users want from their mediators.

The panel was moderated by Sarah McAfee, an in-house counsel for General Motors LLC in Detroit. She was joined by Erinn DePorre, Vice President and Legal Counsel of Auto, Data and Employment at San Diego-based wireless-technology giant Qualcomm,  and General Counsel Kristine Campbell, of U-Haul Holding Co., in Phoenix.

The panelists began by discussing what they each think about when selecting a mediator. DePorre stated that Qualcomm will partner with outside counsel, and finding the appropriate neutral requires a search. She mentioned that they may “poll around the room” to see if the team has engaged a neutral with “a particular experience” in order to have a mediator with the proper background for a specific mediation.

Notably, DePorre also said that she will not search “venue-specific unless that is a recommendation from my outside counsel.” She went on to say that venue search may happen if there is a “very, very local litigation.”

Kristine Campbell agreed with DePorre’s points, and added that U-Haul  also maintains a list of mediators that they will not use due to prior poor experiences.

Moderator McAfee then shifted the discussion to the role of subject-matter expertise in selecting a mediator.  Erinn DePorre replied that when there is a “technically difficult case to defend,” she will need someone who understands the subject matter and the type of litigation. She said class-action matters require a mediator with class-action litigation experience.

The panel discussed diversity’s impact on hiring decisions. DePorre noted that Qualcomm prioritizes diversity, but also, the “goal of a mediation is to work toward the compromise.” Therefore, she said, the company’s standard is a candidate who can help achieve that goal--the task in hiring is to get the best person for the job.

U-Haul’s Campbell concurred, noting that her office mediates frequently, often in smaller towns and cities, and in each needs a neutral “who knows the subject matter and is an excellent mediator.”

McAfee mentioned that General Motors had signed the CPR National Task Force on Diversity Commitment under the Ray Corollary Initiative (see www.cpradr.org/diversity-commitment) to consider diverse mediators.

The panelists also discussed their preference between facilitative and evaluative mediation. An evaluative mediator is more directive and allows mediators to use their expertise to assess the strength of both parties’ claims. A facilitative mediator is less directive, but has the potential for developing more creative resolutions with the parties.

Campbell discussed the distinction between the two and mentioned that a facilitative mediator is fine “if you want to just carry a message between the parties.” She stated that U-Haul would not use a strictly facilitative mediator, instead preferring direct negotiations. She added that U-Haul also does not want to use neutrals who “refuse to engage with you on reading the other room” because so much of negotiation is understanding “what is going on in the other room,” in order to discern “what is driving” the adversary’s settlement decisions.

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General Motors, U-Haul and Qualcomm are well-known brands, so the discussion provided valuable insight into their corporate counsels’ mediation use, techniques and processes. The discussion showed that corporate counsel will commonly ask around when looking for a mediator, and the level of subject-matter expertise needed may vary depending on the case. Additionally, the panel demonstrated that while internal diversity is an important hiring consideration, a premium may be placed on relevant experience and subject matter or industry expertise.

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The program is available for CPR members at https://bit.ly/3PBcNrG. The CPR Mediation Committee will next meet via Zoom on Nov. 7 at noon.  For information on joining, contact CPR Vice President, Advocacy & Educational Outreach and committee staff liaison Ellen Waldman at ewaldman@cpradr.org.

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The author, a second-year law student at Brooklyn Law School in New York, is a Fall 2023 CPR Institute intern.

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