I received a call recently from a lawyer wondering whether I could mediate an oil and gas dispute, specifically a dispute his client has with a major oil company over the language of a royalty calculation provision. What was needed, I was told, was a mediator who could convince the arrogant oil company that they were wrong!
Like every other experienced commercial litigator, mediator or arbitrator in our community I have “handled” a few oil and gas cases in my day, and I told the caller that with proper study, there was probably no issue or argument that I would come across in the mediation that I would not understand. And then I told the caller I should not serve as the mediator.
Process vs. Substance Expertise
The issue here is a lesson in neutral selection. I am an expert in the process of dispute resolution. But I claim to be an expert if very few other things (let’s just say I have a spice-grinder—and I use it). Having mediated over 3,000 disputes, I know a LOT about creating and facilitating a process that can lead to resolution. But I knew that what my caller needed was a neutral who, because of his or her background, expertise, and reputation IN THE OIL INDUSTRY, would be able to offer an evaluation during the mediation that was unassailable—or at least would have more credibility with a major oil company’s representatives than would my evaluation.
More often than not, process expertise is what you are looking for. But occasionally substance expertise can be critical.