Mediation has become a part of our legal system and the use of mediation will most likely continue to expand. That means lawyers will find themselves evaluating and recommending mediators to their clients more and more frequently. How do you select a mediator? What qualities should you look for? Are good mediators born or made?

These are questions I thought would be perfect to ask of a seasoned and experienced mediator. Fortunately, I knew just the person, my dad, Ken LeMaster.

Not only had he mediated thousands of cases and trained hundreds of lawyers to become mediators, I knew where he lived. The perfect idea for the setting of the interview fell into my lap when my dad called and said what every baseball fan in Seattle wants to hear during a heat wave, "Do you want to go to the Mariner's game tomorrow, it's a day game?"

After we had settled into our seats, I thought I would start with an easy warm up question so I asked, "As a mediator, how many cases have you settled over the years?" He responded, "None." Knowing full well that an extremely high percentage of cases have settled where he was the mediator, I thought maybe he had misunderstood my question, so I asked it again. Again, he said "None." In response to my insistence that he had settled thousands of cases, he said, "I have yet to settle a case. The parties settle the case. I am a facilitator of the process. I just assist them by using persuasion. There is a big difference. If the mediator thinks he or she is supposed to be the one 'settling' the case, there is a risk that the parties won't participate as fully as they should. That's a problem." This initial exchange set the philosophical tone for our discussion. What follows is a summary of the results of my in-depth, nine inning interview.

The first revelation, as I am sure you may have guessed, is that there is no definitive answer to the question posed in the title of this article. It is impossible to say whether, in all instances, good mediators are born and not made or vice versa. However, most good mediators share many of the same qualities and personality traits, which include being well-rounded, creative, flexible, likeable, persistent, and having common sense and a good sense of humor. Experience is also important, but it is the quality of experience and not the quantity that counts.

So what do you do when you have to choose a mediator? How do you start? The first thing you do is think of the lawyers you know and like, and use one of them. If they are unable to serve as the mediator, ask them who they know and like. As to each person you are thinking of as a potential mediator, go through the list of qualities and personality traits listed above. If you know and like the person, or you have a good recommendation from someone you know and like, and the potential mediator has even a few of the characteristics described above, you can't go wrong. This may sound overly simple, but it is a good way to get a talented mediator.

To give some life to the list of characteristics, it helped me to think of the memorable scene from the movie Five Easy Pieces where Jack Nicholson's character, Robert Dupeau, stops at a roadside diner for a meal. He encounters a waitress who sternly upholds the diner's rule of "no substitutions" and won't allow him to order a side of toast. In an attempt to get the toast, Dupeau orders a chicken salad sandwich and tells the waitress "now all you have to do is hold the chicken, bring me the toast, give me a check for the chicken salad sandwich, and you haven't broken any rules."

Although the scene degenerates and Dupeau ends up being thrown out of the restaurant, this scene (before it degenerates) provides a good illustration of how to select a good mediator. When evaluating the list of people you are thinking about using as a mediator, ask yourself, "is this person more like the waitress or more like Dupeau?" If the answer is the waitress, who, at least in that scene, was inflexible, resistant to creative suggestions and lacked a sense of humor, move on to the next candidate. If, on the other hand, the person is more like Dupeau, who was flexible, creative, and persistent (he was also crude, but let's leave that out as a good trait for a mediator), put that person on your short list.

What about training, experience and credentials? While a mediator needs to have some level of mediation training, and it doesn't hurt to have lots of experience and impressive credentials, this should not be your first question. In other words, don't be blinded by a mediator's resume. All the experience, training and credentials in the world won't be of any use to a mediator who is limited by an attitude of "no substitutions."

David A. LeMaster is a shareholder with the Seattle firm of Porter, Kohli & LeMaster , P.S. His practice emphasizes representation of individuals and companies in business and insurance litigation, employment law matters (including claims of wrongful discharge based on breach of contract, discrimination and retaliation), products liability claims, contract disputes and in negotiations and mediation. He has also served as a mediator in cases involving contract disputes and tort claims.

Ken LeMaster is a retired Vice-President of Litigation for a major insurance company, the recipient of the King County (Washington) Bar Association Award for "Outstanding Leadership" for mediation in 1989, and has been designated by Law&Politics as a "Super Lawyer" for mediation for the years 1999 and 2000.