Mediators and Mediation Services

To choose a good mediator for your dispute, you first have to know what your options are. This section explains the various types of media­tion services or mediators that are available in many communities and the kinds of cases each is most experienced in handling.

1. Community Mediation Centers

Most community mediation centers are independent, nonprofit organi­zations that receive funds from state and local governments. Services are generally provided free or at low cost (perhaps $25) and are available to anyone in the community. These centers provide a cost-effective way to resolve relatively minor cases that often get lost in, or otherwise are not well served by, the local courts and criminal justice system.

There are hundreds of these centers nationwide. They are called by various names—such as “dispute resolution center,” “neighborhood justice center,” “community mediation program,” or “center for dispute settlement.” To find out if there is a center in your community, check the Yellow Pages under “mediation,” call the general information num­ber at city hall, or contact your local bar association. If this doesn’t produce results, contact the National Association for Community Mediation, 1527 New Hampshire Ave., NW, Washington, DC 20036, 202-667-9700, or visit their website at www.nafcm.org and click “Mediation Center Directory.”

Community mediation centers typically have a no-frills “public service” look. This works just fine; all you need for a successful media­tion is a quiet room, a table with a few chairs, and a good mediator. Indeed, the modest look may help disputants relax—you know you’re not paying for circular stairways or Persian carpets.

Many cases heard at the centers are referred there by judges, police, and social service agencies. But these days, especially when it comes to small consumer claims and disputes between neighbors and between landlords and tenants, the centers are also seeing lots of cases brought to them directly by the parties involved.

Some centers have also developed special mediation programs to meet local needs. For example, disputes between roommates may be a common occurrence in a college town, and centers in rural areas may specialize in mediating disputes between farmers and food storage companies or bankers, as well as disputes between mobile home park owners and tenants.

Usually, cases at community mediation centers are mediated by trained volunteers from the community (the state laws that establish community mediation centers also set minimum training standards for the mediators who work there). Most community mediation centers do not give the parties much choice in who their mediator will be. Instead, the case manager will consider various factors, such as subject matter, com­plexity of the case, and mediator availability, and then assign a mediator from the pool of volunteers available. But sometimes you can choose your mediator, or at least influence the assignment (see Section D, below).

THE OLD WOMAN AND THE FAST CAR: A TYPICAL COMMUNITY CENTER MEDIATION

In Delaware County, Pennsylvania, an elderly woman was at the end of her rope when she called the Community Dispute Settlement Center. She complained of a young couple next door who came and went at all hours of the night in a high-performance Porsche, with motor roaring and radio blaring. So intimidated was she by her neighbors that she asked for police protection at the mediation (a center staff member assured her it wouldn't be necessary).

At an evening mediation session, the woman and the young couple reached a settlement. The couple agreed to operate the Porsche quietly while in their driveway or on their street (not shifting above second gear, and with the radio off, for example) and the woman agreed to call the couple at their home or offices (they exchanged phone numbers) if she had further complaints.

Adapted from Anne Richan, “Developing and Funding Community Dispute Settlement Programs,” Mediation Quarterly, No. 5, 1984, p. 86.

2. Private Dispute Resolution Companies

An increasing number of for-profit firms now compete to mediate cases such as contract disputes between businesses, construction cases, employment disputes, and disputed insurance claims arising out of auto accidents and other mishaps.

Private dispute resolution companies provide a panel of trained and experienced mediators for the parties to choose from. However, they serve other functions as well, including:

• explaining the benefits of mediation to all parties (and convincing reluctant parties to give it a try)

• administering the mediation, including all paperwork, scheduling, and billing, and

• following up with the parties after the mediation ends, if further dispute resolution services are needed.

There are hundreds of private dispute resolution firms. Some operate at the national level, with branch offices in major cities, while others are mid-sized or smaller firms that operate regionally or locally. One of the largest national outfits is Judicial Arbitration & Mediation Services or JAMS, headquartered in Irvine, California. This company has more than 25 offices nationwide and maintains an impressive roster of mediators—mostly lawyers and retired judges. To learn more about JAMS and to find a location near you, check out their website at www.jamsadr.org.

Other national firms include Resolute Systems, Inc., headquartered in Milwaukee, Wisconsin (www.resolutesystems.com), and U.S. Arbitration & Mediation, Inc. (www.usam.com). The American Arbitration Association, Inc., in New York, New York (www.adr.org), is a well-established nonprofit corporation that handles many of the same kinds of large, complex disputes as the newer, for-profit companies.

Fees at most of the private firms start at a minimum of about $500 per party for a half-day mediation session. Costs can rise to thousands of dollars, depending on the complexity of the case and the length of time needed to resolve it. Many private firms also charge an administrative fee—a one-time charge to cover the costs of opening and managing the case. This fee might range from $150 to $300 or more.

Most of the larger private firms, and many of the smaller ones, maintain a list of people available to mediate disputes, usually referred to as “mediation panels.” The panel is simply a list or roster of mediators available through that firm. Most panel members are former judges and practicing attorneys, or others with expertise in subjects such as engi­neering, health care, construction, and land-use.

Private firms can differ hugely in terms of how much training and skill their mediators have. At one extreme they often provide the most highly skilled career mediators. Yet, paradoxically, it is also in these firms where you are fairly likely to run into problems with inexperi­enced mediators. One reason for this is that these firms often hire big­name judges who have recently retired. Judges with little background or training in mediation may believe their role is just to “knock people’s heads together” until they settle, as they did when they were on the bench. Similarly, you may encounter a lawyer-mediator with great specialized knowledge and reputation in a particular area of the law— but little training or experience in mediation.

3. Independent Mediators in Private Practice

Independent mediators in private practice work on their own, unaffili­ated with private dispute resolution companies or other mediation providers. Whether they practice locally or nationally, independent mediators set their own fees, handle their own paperwork, keep their own schedules, and often develop and use their own rules.

It's wise to consider using an independent mediator when you don't need or want to pay for the extra services that a mediation service typically provides—perhaps all parties readily agree to mediate and you're willing to set up the date, time, and place yourself. But an inde­pendent mediator usually won't get involved in trying to persuade reluctant parties to mediate. So if you anticipate any reluctance on the part of the other side to mediate, you should probably choose a media­tion service rather than an independent mediator.

You also should consider using an independent mediator when your case will require a mediator who is highly knowledgeable in a particular field. For example, if you are involved in a complicated construction dispute, an independent mediator who specializes in this type of case can bring to the table a great deal of knowledge about construction law and experience in working out creative settlements.

To find an independent mediator with a specialty in your field, ask lawyers or business owners who work in that area. For example, if your case involves a construction dispute, a local lawyer who specializes in construction litigation is likely to have a list of independent mediators, both locally and nationally, who specialize in construction cases. A lawyer who specializes in health care—or the president of the local medical society—may have names of mediators who handle medical disputes. Similarly, if your dispute involves a particular area of busi­ness—printing, scrap metal, or injection molding, for example—state or national offices of trade groups representing these fields may have lists of mediators with those specialties.

4. Court-Connected Mediation Programs

State trial courts all over the country are initiating mediation programs in order to reduce their caseloads and operating costs. Some of these programs are for civil cases; others are for minor criminal offenses.

a. Civil Cases

Some court programs handle a variety of civil (noncriminal) cases. Under these programs, people who file lawsuits are required or strongly encouraged to try mediation before they can proceed. Nearly every state today has some kind of court-connected mediation program. Some states require parties to try mediation; others require only that parties receive information about the availability of mediation, but do not require them to pursue it.

In some states, the court itself provides the parties with conference rooms and mediators. In others, judges or court clerks simply instruct the parties to pick a mediator from a list of “qualified” mediators or to go out and find their own mediator.

If your case is already in court, call the clerk of the court to find out if there is a mediation program available, or ask your attorney to check on this. If your case is not in court, a court-based program won’t be an option for you.

0 Don't file a court case just to be referred to mediation. It’s ordinarily not worth incurring the hostility, fees, and delays that come with filing a lawsuit just to have access to a court-connected mediation program. Sometimes, however, you won’t have any other choice. If the other party refuses to negotiate or mediate (which means that you must either sue or forget about pursuing your case), you may want to go ahead with your lawsuit—and plan to ask the judge to refer your dispute to a court-connected mediation program. For more on this option, see Chapter 4.

Typically, mediators in programs run by the courts are practicing lawyers who volunteer or are paid a small stipend for occasionally mediating cases. These lawyers probably have had some minimal mediation training but most do not handle enough cases to develop really good skills. If the court refers parties to local mediation services rather than trying to run the whole program on its own, you may have better luck. In some situations, you may even have your pick of anyone in the local mediation field, including panels of mediators put together by private firms as well as independent mediators. In some states, you can even use a nonlawyer mediator in a court-connected program.

If a court requires you to mediate, it will sometimes pick up the tab, at least for the first couple of hours, as long as you use a mediator connected with the court’s program. If you and the other party decide to choose your own mediator, you will probably have to foot the entire bill.

COURT-SPONSORED DIVORCE MEDIATION

In many states, divorce courts will send parties who have children to mandatory mediation to work out custody and visitation issues. This court-sponsored mediation is usually free to the participants (although there may be a fee for missed appointments). The mediators are full­time employees of the court, and they are often experienced social workers or therapists who are trained to deal with complex family issues. Some court programs require the mediator to report to the judge after the mediation and make a recommendation about custody or visitation; in others, the mediation is confidential and the mediator doesn’t make a recommendation. For more on court-sponsored divorce mediation, see Chapter 10.

b. Criminal Cases

Mediation programs established by local public prosecutors or district attorneys are fairly similar to those established by courts. But unlike court programs, which usually focus on civil disputes, prosecutor programs are designed to resolve minor criminal complaints.

Programs around the country differ, but typically the mediators will be either full-time court employees with backgrounds in social services or criminal justice, or part-time mediators with legal backgrounds. Mediators who work at this type of program usually handle a high volume of cases, most of which present intense personal grievances. If they are able to continue mediating these kinds of cases successfully for more than a few months without burning out, they probably have developed pretty good mediation skills.

5. Federal and State Government Mediation Programs

Lots of federal and state agencies have implemented mediation programs as a way to improve services and reduce administrative and litigation costs. If you have a dispute with a government agency (or a dispute with a private party that a government agency is supposed to handle), ask whether mediation is available. For example, at the federal level, if you file a workplace discrimination claim with the Equal Employment Opportunity Commission, you can try to resolve it through a mediation program offered through the agency’s district offices. Or, if you are a farmer who is having trouble with a lender, several Midwestern states offer mediation services through the state agency that deals with agricul­tural concerns. And Medicare is just beginning a mediation program to resolve disputes between Medicare patients and health care providers.

6. Trade and Professional Group Mediation Programs

Some trade groups and professional organizations, such as realtors and lawyers, have created specialized programs to try to mediate their own disputes. For example, lawyers in some cities and states have set up mediation programs to handle fee disputes with clients. And the Na­tional Association of Realtors requires its member associations to offer mediation when disputes arise after the sale of a home.

Consumers should approach these programs with caution. Although they are free or very low-cost, they often aren’t really neutral. The purpose of these programs, at least in part, is to reduce the number of lawsuits against members. The mediators are often members of the trade or professional group and may be more inclined to push for solutions that favor the organization.

Despite these potential problems, you may wish to try mediating with one of these groups. After all, you can always withdraw if you believe the process is unfair. For example, let’s say you hired a real estate sales agent to handle the sale of your home, and you believe the agent disclosed confidential information about your negotiating position to a prospective buyer, resulting in a lower offering price. After the realtor refuses to pay you the money you believe you lost on the sale, you agree to mediate the dispute through a program run by the local real estate board. Under the program, the board pays supposedly neutral local real estate agents a small stipend to sit as mediators. Can a realtor-mediator really be neutral as between you and your former agent? Probably not. But because the process is free and the realtor has no authority to impose a decision you don’t agree to, it may be worth a try. Also, some trade groups want their mediators to be pro-consumer in order to head off any potentially bad publicity directed at their group as a whole. In other words, the mediator may push for a settlement in your favor to keep you from contacting “60 Minutes.”

7. Specialized Mediation Services

As mediation gains in popularity, some groups that serve particular communities have begun to develop their own networks of mediation services. Here are just a few of the specialized programs available:

• Arts Resolution Services. Developed by California Lawyers for the Arts, this nationwide program provides mediation for arts-related disputes, including disputes over copyright, ownership of artistic work, pay­ment for work, contracts, board and artistic control, and more. Fees are based on a sliding scale. To find out more, check out the website of California Lawyers for the Arts at www.calawyersforthearts.org.

• Institute for Christian Conciliation. If you would like your dispute medi­ated based on Christian biblical principles of conflict resolution, you may want to contact the Institute for Christian Conciliation, a national group with members and affiliated organizations around the country. The Institute trains and certifies its own mediators, who come from many professional and work backgrounds, including lawyers, mental health counselors, clergy, homemakers, and business people. For information, contact: Institute for Christian Conciliation, 1537 Avenue D, Suite 352, Billings, MT 59102 406-256-1583; www.Hispeace.org.

• Asian Pacific American Dispute Resolution Center. This organization provides mediation and conciliation services in Asian Pacific languages, includ­ing Chinese, Korean, Japanese, Vietnamese, and Tagalog. The Center handles ethnic disputes as well as domestic, housing, neighborhood, employment, and business conflicts, and matters involving race relations. Disputants are asked to pay nominal processing and hourly fees, but fees are waived for those unable to pay. The Center primarily serves Los Angeles County, but can assist those outside the area by conducting telephone mediation and by making nationwide referrals to mediators or translators fluent in Asian Pacific languages. For informa­tion, contact the Center at 1145 Wilshire Blvd., Suite 100, Los Angeles, CA 90017 213-250-8190; http://pages.sbcglobal.net/apadrc.

In addition, many lesbian, gay, bisexual, and transgender commu­nity centers offer mediation services, as do some social services agencies that work with the elderly and other specific communities.

Common Types of Disputes and Where They Can Best Be Mediated

B.