Selecting a Mediator

Whether you are using a mediation service or a mediator in private practice, you will want to select a mediator who has the necessary skills, techniques, training, and demeanor to help you resolve your dispute.

QUsing more than one mediator. Many mediators prefer to work alone, and are well able to handle cases by themselves. Some mediators will offer you the option of involving an additional mediator in your case—often a therapist or someone with mediation skills and expertise in a subject relevant to your situation.

There are pros and cons to using a second mediator. On the negative side, using a second mediator can increase costs and complicate sched­uling. On the positive side, two heads can definitely be better than one when it comes to working with difficult personalities and using different methods to move things forward, or when your case is particularly complex or involves a large number of people. In some types of cases, having two mediators can even be more efficient and cost-effective—for example, in a case involving difficult interpersonal relationships as well as business concerns, a lawyer-mediator and a therapist-mediator working together can help resolve the practical business matters and also address patterns of communication and emotional dynamics that contributed to the conflict. In this situation, although the mediation sessions might be more expensive, the process may also move more quickly, and the resolution may last longer and prove more satisfying.

1. Methods of Selecting a Mediator

The method you use to select your mediator will depend, in part, on whether you are using a mediation service or a mediator working in private practice.

a. Selecting From a Mediation Service's Panel

Many mediation services maintain lists of mediators (often called “pan­els”) who are available to handle their cases. Private dispute resolution companies typically invite the parties to select one mediator from the panel. At community mediation centers, the staff often appoints the mediator who will handle a case. This subsection describes some of the most common ways a mediator is selected or appointed to handle a case; Sections D2 and D3, below, will help you decide which mediator to choose, if you have the opportunity to do so.

By Appointment

At some community mediation centers, the staff will simply appoint a mediator (or more than one) from their panel without asking for your input. Many court-connected mediation programs also run this way.

Typically, the case manager will look over the file to determine whether your case presents any special requirements for a mediator, such as foreign language skills or technical knowledge. If you think your case requires a mediator with special expertise, make this request to the staff. The case manager should try to pick someone from their panel who has the qualifications you need.

You could also request a mediator of a particular ethnicity or gender, if you can reasonably show that this would help facilitate your mediation. For example, if two African-Americans or two gay people involved in an interpersonal dispute felt strongly they could only discuss the intricacies of their dispute with someone from their community, many mediation services would appoint a mediator who has the appropriate background.

If the case presents no special mediator needs, the case manager will assign someone from the panel, either at random or in rotation, in an effort to give every mediator on the panel an opportunity to handle some cases. Before making the assignment, the case manager will probably call the mediator to ask if there are any reasons he should not be assigned the case, such as a conflict of interest or a scheduling problem.

Although it may appear that the case manager’s selection of a mediator is final, you do not always have to accept this person. If you can show a valid reason for rejecting the mediator—an overlooked conflict of interest, for example, where the mediator has a family, social, or business connection with you or the other party—the mediation service will make a new assignment.

Striking Out Names

In the “strike-out” method, each party is sent a list of mediators and asked to strike (cross out) the names of one or more mediators they do not want. You don’t have to give a reason for striking a name—it can be because you know one of the mediators and think she would not be a good mediator, or because someone else advises you not to use one of the mediators. From the names remaining, the case manager will ap­point a mediator. This selection method has traditionally been used by the American Arbitration Association and other organizations that help resolve labor problems and other disputes between organizations; some private dispute resolution companies also use it to choose mediators for individual disputes.

Ranking by Preference

Some mediation services will ask you to rank, in order of preference, the four or five people on the list whom you would most like as a mediator for your case. The case manager then appoints the one ranked highest by both parties. This method is favored by some private dispute resolution firms because it is customer-friendly—it gives both parties some mea­sure of control over mediator selection. On the other hand, this process can be more cumbersome than others: If the names you and the other side select do not overlap, you may have to repeat the process.

Combining Strike-Out and Rank by Preference

Some mediation services combine the strike-out and rank-by-preference methods. Following this approach, you may be presented with a list of ten or so mediators’ names, with the following instructions:

“Line out any names that are unacceptable and rank the remaining names in order of preference, with #1 representing the most preferred.

QStaff members often make good mediators. At some mediation services, staff members mediate cases in addition to helping run the business. In our experience, staffers are often more experienced and skillful mediators than many of the part-time mediators on the service’s panel. Other things being equal, you may wish to choose a staff media­tor to handle your case.

b. Selecting an Independent Mediator

If you and the other party prefer to select an independent mediator in private practice, how you decide on a mediator will depend largely on how well you are getting along. For example, if you and the other party are on relatively good terms, you could both make calls to find a few independent mediators and then jointly interview them—either in person or by conference call—to decide which one you want to use.

More typically, you and the other party may prefer to work coopera­tively, but with less direct contact. For example, if you and your busi­ness partner are breaking up, you might agree that one of you will identify three independent mediators who have a specialty in disputes involving small business. The other can then check out all three and choose the one to mediate your case.

If the other party is reluctant to mediate and/or the two of you cannot agree on a private mediator for your case, you are probably better off using a mediation service.

2. Mediator Qualifications

Here are some of the factors you should consider when deciding which mediator to choose, whether you are looking at mediator in private practice or considering the mediators on a mediation service’s panel.

a. Skill Level

Generally, a mediator’s skill at helping people work through problems depends on training, experience, and the mediator’s own intuitive peacemaking abilities. While it’s tough to measure someone’s intuitive ability, you can learn whether a mediator has adequate training and experience—and these should be the first questions you ask of any mediator.

0Some people who call themselves mediators have little training or experience.

This is particularly likely to be true of former judges and lawyers, some of whom see mediation as a sort of quasi-retirement from the legal profession. These mediators may be quite skilled as litigators or decision makers, but often lack the special abilities and people skills necessary to mediate cases. If you are considering using a retired judge or lawyer as a mediator, be sure to ask about mediation training and experience—not just prominence in the community or experience in the courtroom.

Training

Most good, basic mediator training programs involve between 25-40 hours of classroom time and include lectures, demonstrations, videos, and role-playing exercises. Training topics include the psychology of human conflict and conflict resolution, negotiation theory, laws of mediation and confidentiality, mediator ethics, and the practical steps involved in conducting a typical mediation session. Of course, training quality varies with the skills of the trainer, the sponsoring organization, and the group of people being trained. But if the mediator you are considering attended a training program of 25 hours or more, you can probably assume—regardless of the specific training organization—that the course adequately covered the basics.

? Mediation doesn't require a degree or certificate. These days, many

colleges and universities offer degree programs in conflict resolu­tion. However, many of these programs teach theory rather than practi­cal skills. You shouldn’t favor a particular mediator for possessing such a degree, nor rate one lower for lack of one. Similarly, a mediator who claims to be “certified” won’t necessarily have the skills or training to handle your dispute. Certification usually means only that a person has received a certificate from a mediation training program—not that he is skilled or likely to do a good job in your case. Unfortunately, certifica­tion also does not mean a person has lots of mediation experience; nor does it normally require any continuing education, advanced training, or minimum level of practice.

Beyond the basic 25-40 hour programs, mediators who specialize in particular types of disputes often participate in advanced training programs. For example, a divorce mediator may have taken a program established by the Academy of Family Mediators. Similarly, mediators who specialize in areas such as construction, health care, business, and intellectual property may have further training in these fields.

Experience

It takes practice to mediate well. This is not to say that a person who has successfully completed a mediator training course could not do a good job for you right out of the box, but all things being equal, it makes sense to pick a mediator who has some experience.

Some people mediate full time and have handled hundreds of cases; others—such as practicing attorneys whose names appear on mediation panels—may only mediate one or two cases a year. Those are the extremes, of course. In between, there are many well-trained people who mediate with some regularity; even mediating one case a month will let a person build up skills over time.

You should also find out how much experience the mediator has had with cases like yours. For example, if you are ending a relationship and have to work out property division, child custody, and ownership of a business with your former partner, you will want a mediator who has considerable experience handling family disputes. A mediator who has handled hundreds of cases may be a poor choice if most of those cases involved monetary disputes between auto accident victims and insur­ance companies and yours is a family matter.

Similarly, special skills are required to mediate a case with multiple parties. A mediator who is dealing with three or more parties will have to work harder to maintain order, give everyone an opportunity to speak, and keep the discussion moving forward. If your case involves multiple parties, you should select a mediator who has experience with these kinds of cases.

QTake a look at mediator settlement rates, if possible. Some mediation

services keep statistics on settlement rates for each mediator on their panel. For example, “Joe Doaks mediated 17 small business dis­putes last year; 12 of those cases settled either at the session or within a short time afterward.” While settlement rates are no guarantee that a mediator will be able to settle your case, it can be a useful indicator of experience and skill level.

b. Professional Affiliations

Another way to size up a mediator is to ask about membership in professional mediator organizations. Because most professional groups have no fixed requirements for membership (other than paying dues), membership by itself won’t tell you how skilled a mediator is. However, a person who is willing to pay for memberships in two or three profes­sional groups probably wants to keep up with developments in the field.

One mediation group, the Association for Conflict Resolution (ACR), has an additional membership requirement. This national organization requires those who join as “practitioners” to have at least three years (or more than 200 hours) of experience as a mediator or arbitrator and at least 40 hours of training (or the equivalent). Those who join as “mem­bers” don’t have to meet these requirements. ACR and other professional mediator groups are listed in Appendix C.

c. Expertise

For some types of cases, such as small claims, simple contract matters, or neighborhood disputes, any well-trained, experienced mediator should be able to handle the problem adequately. But for more involved cases, you will usually be better off with a mediator who knows about the issues and options available in that type of dispute. For example, if your case is against a bank over the way finance charges were levied on an overdue portion of a commercial real estate mortgage, it will be helpful to have a mediator who has a basic understanding of the financial aspects of the dispute. This way, you won’t have to spend the beginning of your mediation educating the mediator. Similarly, if your dispute involves the breakup of a small business partnership, you should look for a mediator who is experienced in helping small businesses arrive at creative solu­tions. Subject areas in which mediators often specialize include:

• divorce and family

• business

• employment

• construction, and

• intellectual property (patents, trademark, and copyright).

The case manager at your mediation service can tell you which, if any, of their panel members are up to speed in the subject area of your dispute. If you are considering an independent mediator, ask about the mediator’s expertise. If the mediator doesn’t specialize in disputes like yours, ask for referrals to mediators who do.

PAIR A GOOD MEDIATOR WITH AN EXPERT

If a mediator whom you really like lacks the necessary expertise in the subject of your dispute, don’t despair. You can ask the mediator to pair up with another mediator or professional who has the necessary expertise.

With a co-mediation team, you can choose one mediator with strong mediation process skills and a second mediator with subject matter expertise. Co-mediation teams are especially good with large, multiparty cases; the mediators can divide up to meet with the parties separately, which will keep things moving along. But a co-mediation team is likely to be nearly twice as expensive as using a single mediator.

Another option, which is less expensive, is to use one mediator but hire another person (not a mediator) who is an expert in the subject area of the dispute. The parties or the mediator can choose the expert. The expert will be available to help the mediator understand the issues and to suggest possible solutions. For example, if your dispute involves a building project in which the basement flooded during construction, you can hire a good general mediator and a civil engineer with a specialty in subsurface construction issues. The mediator can consult with the engineer as needed during the mediation. You and the other side would pay the engineer by the hour—much less, probably, than you would have to pay a full-time co-mediator.

d. Mediator's Style and Philosophy

The general goal of every mediation is the same: to resolve a dispute. However, how the mediator goes about trying to reach that goal will vary greatly, depending on the mediator’s philosophy and approach.

Facilitative or Evaluative?

Some mediators are traditional, almost purist, in their approach to mediating. They see themselves as “facilitators” whose primary job is to be good and patient listeners who can help the parties (1) communicate, (2) see the strengths and weaknesses of each side’s position, and (3) think creatively about ideas for settlement. These mediators will not tell the parties what a case is worth or how they think it should be settled.

“Evaluative” mediators, on the other hand, will take a more direct, or activist approach. For example, they might tell the parties how they think a judge or jury would decide a case, and they may propose con­crete settlement proposals for the parties to consider.

Do you want a mediator who is more facilitative or one who will plunge in and propose a specific resolution? In many cases, it won’t matter; either type will do a good job. But in some cases, you may sensibly have a preference. For example, many business executives seem to favor evaluative mediators; because the executives themselves are used to weighing alternatives and making decisions, they often have little patience for long drawn-out proceedings. On the other hand, if your dispute concerns an interpersonal problem—such as a painful feud with a relative, long-term friend, or neighbor—you may want a mediator who will be patient enough to help you arrive at your own solution, not one who will presume to suggest how you should resolve things.

If you are selecting a mediator from a mediation service’s panel, discuss your preference with the case manager. Because the terms “facilitative” and “evaluative” are not universally used, you may need to describe the type of mediator you want either as one who will actively appraise the case and propose solutions, or one who will refrain from giving an opinion and instead focus on helping you and the other party work toward your own solutions.

Willing to Make a Specific Recommendation?

Going a step farther, you might want a mediator who, if your case appears unlikely to settle, will make a recommendation as to how you and the other side might resolve it. Sometimes called a “mediator’s proposal,” a recommendation is entirely different than a mediator’s efforts to advance a mediation by evaluating the strengths and weak­nesses of each party’s case. See Chapter 8, Section A, for more on asking a mediator to make a recommendation.

If you think that you and the other party might want your mediator to make a recommendation, tell the case manager.

Willing to Intervene to Protect the Weaker Party?

In some disputes, one party may, for a variety of reasons—a poor education, language difficulty, emotional fragility, or past abuse—be subject to intimidation by the other. This could lead to the weaker party accepting an unfair settlement in mediation.

In general, a mediator has no duty to protect the interests of a weaker party; it is just not part of the job description. The rules of some mediation programs even spell this out. As a result, many mediators will never intervene to help a weaker party, even one who is about to agree to what seems like an unfair solution.

Nevertheless, there are times when some mediators will intervene to protect a weaker party, if they believe the proposed settlement is grossly unfair or likely to lead to problems down the road. If you want a media­tor who will be willing to intervene to steer you away from making a bad deal, discuss this preference with the case manager or the independent mediator.

Impartiality

You want an impartial mediator, not one who will favor one party or the other. You need not be as concerned about mediator bias as you might be with an arbitrator or judge, who has the power to impose a decision (unless the mediator has the authority to make a recommendation to a judge). Nevertheless, a biased mediator could steer you toward settle­ment terms tilted in the other side’s favor.

What would constitute bias or partiality? It can be any relationship, experience, or set of beliefs that might cause the mediator to favor one side over the other. For example, you probably would not want a mediator who has a social, family, or business relationship with the other party, or a lawyer-mediator who works in the same law firm as the one that represents the other party on this or other cases.

There are other types of biases you may wish to consider. For instance, if you are a tenant in a landlord-tenant dispute, you may have qualms about a mediator who is a landlord. Or, if you are a homeowner mediating against a contractor, a contractor mediator may be suspect in your eyes. Although you should feel free to raise these types of concerns with the case manager or mediator, remember that a mediator with a good grasp of the subject matter can often work much more efficiently, and that such a person will generally have to come from one side of the dispute or the other. On balance, the most sensible approach is to assess the mediator’s character rather than worry about these types of side issues—especially because you, rather than the mediator, are in control of the final decision.

The best source of information about possible mediator bias is your case manager or, if you are using an independent mediator, the mediator himself.

Q Don't worry too much about a lawyer-mediator's legal background. Most lawyers specialize to some degree—and this means that many of them represent only plaintiffs or defendants. If you have a dispute with your employer, for example, you may not wish to use a mediator who usually represents employers. However, we have generally found that lawyer-mediators who are otherwise well-trained and experienced can take off their other professional hats and be impartial as mediators. In fact, it can be an advantage to have a mediator who usually does legal work for the other side. These mediators will be particularly perceptive of the weaknesses in the other side’s case, and their opinions will carry special weight with the other side. If your opposing party has really dug in his heels and refuses to give an inch, using a mediator from the same side of the fence may be the only way to make any progress towards settlement.

Mediator's Personality

You may be spending many hours in private and sensitive discussions with your mediator. It follows that, if possible, you’ll want to select a mediator with whom you feel personally comfortable. Working with a mediator can be like working with a music teacher, therapist, or clergy- man—if you don’t connect with the person on an intuitive level, you’re better off picking someone else.

3. Checking Out Prospective Mediators

By this point, you probably know whether you want to use a mediation service or a private mediator, whether your mediator should have any special expertise or training, and whether you want a mediator with a particular philosophy or approach. Now you have to do some research on the mediators you’re considering (or the ones the mediation service has recommended) to decide which one would be best for your dispute.

This section explains some good ways to find out more about prospective mediators.

a. Interview Case Manager at Mediation Service

If you are using a mediation service that allows you to have some say in choosing your mediator, a big part of what you’re paying for is the case manager’s help in setting things up—including selecting an appropriate mediator. You can ask the case manager for information about each prospective mediator, including the factors discussed above (training, experience, subject matter expertise, style, and so on).

b. Ask for a Resume

Many mediation services will provide you with a one- or two-line statement about each mediator listed on the panel, which often includes degrees the mediator holds and current employment. Obviously, this doesn’t tell you much. To get more information, you can ask to see a more detailed resume for mediators who interest you. The resume should outline the mediator’s professional background. It may even reveal possible conflicts of interest of which you were unaware.

c. Check References

You can learn a lot about a mediator’s style and demeanor from talking to past clients, particularly those who had a dispute similar to your own. Some mediation services and independent mediators may hesitate to provide names of past customers out of concern for their privacy. In practice, however, most satisfied mediation customers will be glad to discuss their experience as long as no confidential information about their case is disclosed. When you ask for references for a particular mediator, explain that you just want to discuss how the mediator conducted the mediation, not the details of the case. With this understanding, the case manager should be willing to find a few past users who will talk to you.

d. Talk to Professionals Who Know the Mediator

Another way to learn about mediators is to ask others in your local dispute resolution community. For example, if you are interested in a particular mediator who works as a lawyer, you may be able to get a knowledgeable opinion by calling another lawyer you know. Even if that lawyer doesn’t know the mediator, he will probably know someone who does. But as with any personal evaluation, you’ll want to consider the source. For example, if your brother-in-law is the lawyer you talk to and he has often proved to be a blundering fool, you should probably take his opinions about the mediator with a grain or two of salt.

e. Interview the Mediator

When you can’t get information about a mediator from any of the sources listed above, you might consider going straight to the source and talking to the mediator directly.

If you are using a mediation service, ask the case manager to arrange a phone or face-to-face interview with one or two of their panel mem­bers. The case manager should be willing to cooperate, but will probably want to invite the other side to participate in the interview. Having a private conversation with just one party could compromise the mediator’s neutrality—or at least make the other party suspicious.

Most independent mediators will engage in a brief initial conversation about their practice with whoever contacts them. But, if you or the other party wants to have an in-depth interview about the mediator’s back­ground, philosophy, and possible approach to handling your case, the mediator is likely to suggest that all parties participate in the conversation. Again, the realistic concern is that a private conversation between a media­tor and either party to a dispute may jeopardize the mediator’s neutrality.

A good way to set up an in-depth interview with an independent mediator is to ask the mediator to arrange a conference call during which you and the other party can do the interview together. A joint, face-to-face meeting can sometimes be arranged, but the mediator may be reluctant to make this greater time commitment (especially when you have not yet decided to hire the mediator).

INTERVIEW QUESTIONS FOR A POTENTIAL MEDIATOR

When you interview a mediator directly, you’ll want to ask questions that will yield information about the mediator’s training, experience, impartiality, approach to mediation, and ability to help you resolve your case.

Here are some sample questions to consider:

• What kind of mediation training have you had?

• Tell me about your experience as a mediator.

• How long have you been mediating? How many disputes do you typically mediate in a week, month, year?

• What types of disputes do you mediate? Do you have a specialty? Do you have experience in [the subject matter of your dispute]?

• Do you mediate full time? What did you do before you began mediating? If you don’t mediate full time, do you hold another position or do other work?

• Do you belong to any professional organizations?

• Do you have any personal, family, or business contacts with either party?

• How do your mediations typically proceed?

• How do you see the role of a mediator? Will you help us value our claims? Will you offer a recommendation or mediator’s proposal if we can’t reach a resolution through mediation?

• Describe your mediation style. What do you think are your strengths as a mediator? Are there particular issues or problems that you feel especially well-equipped to handle? ■