Some Considerations to Think About When Picking a Mediator

In my last post, I focused on the considerations to think about in deciding whether to mediate a dispute. This week I want to focus on functions and roles when thinking about selecting a mediator. These include:

Process Facilitator: Setting process ground rules, agendas and meetings; keeping time (sometimes described as the “meeting metronome”); insuring that everyone has the opportunity to speak, etc.

Substantive Evaluator: This role can be both problematic -- it can be easy for the mediator to lose her/his perceived neutrality -- and a powerful aid to resolving the dispute. It is very dependent on the skill and experience of the mediator.

Legitimizer: Mediators are often asked: “What have others done? What are the norms? What are some objective measures?” A settlement based on some sort of “outside” or “objective” measure often makes it easier for parties to agree.

Trainer and Coach: Also a very powerful function when mediators coach parties privately about how to express their views and arguments so others can hear them more effectively. This role is important but not much discussed or understood; mediators often work with parties privately to help them explain their views/positions/demands to the other party without emotional overtone and phrased to also recognize the other party’s legitimate interests.

Problem Explorer: Similar to coaching, mediators often work with parties in joint meetings to explore the full dimensions and implications of a problem and consider possible alternative definitions of the problem.

Reality Tester: A very common technique where the neutral asks parties about their BATNAs – Best Alternatives to a Negotiated Agreement (i.e., “What will happen if you don’t settle this?”)

“Heavy” or “Scapegoat”: Sometimes it falls to the mediator to deliver the bad news. As with many of these techniques, the skill with which mediator performs this task is critical and can enable the parties to continue discussions and achieve settlement despite difficult conversations.

Lawyer or Technical Expert: Sometimes parties find the so-called expert, an experienced attorney or judge, a technical expert or sometimes simply a typical prospective juror helpful. As with all of the techniques, use of this technique is dependent on the mediator’s skill and experience.

Head Banger or “Closer”: In the end, this is the sine qua non of effective negotiations. To reach agreement, the parties have to “close the deal.” Sometimes this is difficult, even after the major issues have been resolved. Mediators can function as the advocate for settlement, keeping parties focused on the ultimate goal and asking parties to consider the alternatives to a negotiated agreement when they – all too often – stray from the path.

More about what to consider when picking a mediator in next week’s blog.

Keywords: mediation, mediator, how to chose a mediator, adr, alternative dispute resolution