Your points remind me of a discussion internally regarding practice areas, industry lingo, and business development. What I truly describe myself as to folks is a complex civil litigator/trial attorney. The real skill is knowing how to attack a problem, set up arguments, drill witnesses in deposition and trial, marshal facts and arguments persuasively, and boil complexity to simple, artful persuasion.

Clients tend instead to gravitate towards industry based skill sets and knowledge. The can see and understand when a lawyer knows their language, understands their business issues, and can communicate with them in their shorthand.

Ultimately, that may or may not translate in the lawyer's talent at advocacy or persuasion. These skills and areas of knowledge are definitely helpful to factually analyze a case, its strong and weak points, and determine how to proceed. In the end though, knowing how to tear apart an expert is its own skill and talent.

I handle a lot of construction related matters, so that becomes a shorthand niche to describe. I am also involved in a LOT of mediation. I have tended to go for folks that have some level of familiarity with construction contracts and issues for purposes of credibility with the parties and also to streamline the education process during the mediation.

In the end, one point of agreement and one of disagreement: I agree with you that a talented mediator needs to possess expertise or experience on multiple lines, but that grasping decision-making and conflict resolution are way more important than having a ton of case specific litigation experience.

I disagree that your post sounds like a lot of boastful self-promotion. :P

In my own legal practice (predating my ADR practice) I found industry knowledge easy to pick up and specialty legal knowledge taking a little additional time (like insurance coverage - horizontal and vertical exhaustion of limits, for instance, "trigger" of coverage for long-tail claims and the like. On the other hand, I once KILLED a nationwide class action that attorneys for Fortune 50 co-defendants settled for considerably more burdensome than my client did because I didn't know that my settlement proposal contained proposals that SIMPLY WEREN'T DONE. I was too green to "know" that I couldn't settle the case in the way I did. So every element of our practice (skill, experience, expertise, technical and legal knowledge) has its up side and its down side and every weakness has its strengths. The agile, the innovative, the courageous and the persistent prevail more often than not, which is a good as it gets in an adversarial system.

Easy to get lost in those details, which unfortunately we have in the past at my division, and it has led to some awful experiences with neutrals who lacked basic competency in mediation. We've had more than our share of prominent professors, retired judges, or distinguished engineers, who felt they did not need any training or experience to be able to hold themselves out as "mediators".

I can tell horror stories about unqualified "mediators" inadvertently leading the parties into greater conflict than when they first approached mediation (occasionally discrediting the practice of mediation with one or more of the participants).

While we like to be able to defer to preferences expressed by the other side (and often have to just to get to mediation), one lesson learned has been to insist that all candidates being considered for an appointment as mediator are genuinely qualified as such. So my own answer to the question you and Peter have posed is this: what we want for our dispute in most cases will be a mediator who is a great.... mediator.

In fact, now that I think of it, all of the most successful experiences we have had in mediation have been with mediators who did not have core industry/technical competence. They didn't need it as the technical details tended to be filled in by the technical people on both sides.

Mike

For those who don't know him, Mike is Senior Counsel, Litigation for GE Infrastructure - Oil & Gas. He is based at his company's headquarters in Florence, Italy where he represents his division in disputes world-wide, including work in negotiations, mediation, and arbitration.

He is also Chairman of the Board of the International Mediation Institute, IMI (www.IMImediation.org).

Mike has been interviewing mediators and their clients in a series of podcasts for the International Institute for Conflict Prevention and Resolution for years.

These incredibly valuable podcasts can be found here: http://www.cpradr.org/NewsArticles/Podcasts/tabid/319/Default.aspx.