Selecting the Right Mediation Service

If you have decided that you want to use a mediation service and have located one or more services you might want to try, the next step is to call them and ask for a brochure describing their services.

Once you’ve had a chance to look over their materials, call them back to ask some or all of the following questions. The answers you get should help you figure out whether the service can handle your case.

If you won’t be using a mediation service, you can skip ahead to Section D.

1. How Extensive Is the Case Management?

“Case management” is industry jargon for handling preliminaries and administrative details, such as:

• getting a reluctant party to mediate

• selecting a particular mediator from a service’s panel

• agreeing on a date for the session, and

• agreeing on how fees will be split.

If the other party is reluctant to mediate, the skills of a mediation service’s case managers will be the key to getting the other party to the table. If you’re facing this situation, you’ll want to know the following information: How will they work to get the other side to agree to medi­ate? Will they contact the other side by letter only, or will they follow up with phone calls? How long will they keep at it? Some services close files after a certain period of time or charge a processing fee to keep a case open. Others will keep working on a case for a long time without a fee in hopes of getting an agreement to mediate.

2. Who Are the Mediators?

Ask about the people on the mediation service’s panel to make sure you will be able to work with a mediator who is competent to handle your case.

For example, does the service use only retired judges? Only lawyers? Or do they have a mix of mediators, including some full-time career mediators? Are their mediators trained? Who trains them? Is the training minimal (they read a pamphlet and watch a videotape) or extensive (25­40 hours)? How many cases a year does a typical member of their panel mediate: just a few, or dozens? For how long have most of them been mediating?

Do they have mediators available with special areas of knowledge and expertise (if applicable to your case) such as engineers (mechanical, electrical, civil), physicians, business people, real estate experts, or family counselors?

3.

Many private dispute resolution companies allow the parties to jointly select a mediator from their panel, while most community mediation centers simply assign a mediator or panel of mediators to your case. Does the mediation service you are considering give you the opportunity to pick? If so, how does the selection process work?

4. Are the Fees Reasonable?

Is there a published fee schedule? If so, ask to see it. If you are the one initiating mediation, do you have to pay a filing fee simply to have the case opened? Or are fees due only if the mediation service is successful in getting the other side to agree to mediate, and then from both sides equally? If your dispute settles before the mediation, will you owe them a fee? (It might be reasonable for a service to charge a closing fee, if you didn't have to pay a fee to open the case and the service did substantial work on your case before it settled.) Is there a fee to reschedule the media­tion? (Again, this may be reasonable if the fee bears some relation to the amount of administrative work that has to be done to reschedule the case.)

5. Can You Mediate Without a Lawyer?

You can handle most mediations without having a lawyer represent you, and most mediation services will not require you to bring a lawyer. A few, however, may have policies on this. You should find out whether the service has any rules about bringing a lawyer (or not bringing one). Sometimes having legal advice available during mediation is a good idea. The pros and cons of bringing a lawyer with you to mediation or even having one available to consult with by telephone during the session are discussed more fully in Chapter 5, Section E.

6. Are There Written Mediation Rules?

Though mediation is a relatively informal process, a good mediation service will have written rules and procedures, to avoid needless dis­putes about the process itself. Even independent mediators in private practice—including those who handle divorce and family matters— usually have a set of written rules or procedures for the parties to follow.

7. How Will Confidentiality Be Protected?

Will the mediation service preserve the confidentiality of the mediation? How? For example, is the confidentiality of the mediation process part of the rules or do the parties have to sign a separate confidentiality agreement that specifies exactly what the parties and the mediator must keep confi­dential? Ask to see a copy of their standard confidentiality agreement.

8. Will the Process Be Convenient?

Are you dealing with a “user-friendly” mediation service that will treat you like a valued customer? For example, will they schedule your mediation after work hours or on a weekend, if necessary? Where are mediations held? If their offices are highly inconvenient for you, will they arrange another location? If so, is there an extra fee? How quickly could they schedule your mediation if both you and the other party were ready to start? A day or two? A week or two? It shouldn’t take much longer than that.

9. Are References Available?

Are there past users of this mediation service whom you can contact? Most services will start by saying that their client list is confidential (that’s appropriate—you’ll probably want your name kept confidential, too). Still, you can often press them a little to see if they will call one or two former customers and ask if you can call to talk—not about the details of their case, but about their experience using the mediation service.

10. Are There Any Conflicts of Interest?

Does the mediation service have any conflicts of interest with you or the other side that would prevent it from handling your case in an impartial manner? For example, are any relatives or business partners of either party connected in some way with the mediation service? Or does the mediation service have an ongoing contract with the other side—as it might with a bank, brokerage firm, or insurance company—to mediate a large volume of cases? If so, can the service satisfy you that the arrangement does not in any way encourage the mediators to push for settlements favorable to the other side? It’s the mediation service’s duty to be aware of and disclose any potential conflicts of interest to you, but it doesn’t hurt to ask a few questions of your own to uncover problems early on.

D.