Wednesday, September 9, 2009

Final Thoughts on Picking a Mediator

My last two posts addressed questions about mediator roles and functions and mediation styles. It can be difficult to select an effective mediator as there are no state or national licensing requirements or mandatory professional standards governing private mediation services. There are many mediators with many different practice areas and subject-matter experience.

Most parties desire a mediator with experience related to the merits of the matter in dispute. I agree with this view generally, if only because it can be cost-effective to engage a mediator who does not have to be educated about the language of the dispute and has some sense of the alternatives parties have to a negotiated agreement. Mediators are much more helpful if they speak your language and understand the alternatives you are considering.

However, you need to be careful that this understandable desire to select someone who speaks your language and who has “walked in your shoes” does not result in a mediator who is so immersed in the matter or issue that he or she “knows” the answer and will function as a quasi-judge. After all, the dispute is yours, not the mediator’s. In my experience parties often wish to develop an agreement themselves and do not want mediators to function as quasi-judges. In fact in most situations I would not choose a retired judge for this very reason.

Often parties consider mediation after the dispute has arisen and therefore have no agreement regarding how to select the mediator. The simplest method is for all parties to suggest names informally to see if there is someone on whom all parties can agree. However, if that does not work, parties can propose a set number of suggested names and rank the list from first choice to last. The mediator with the lowest combined score is the one selected. Other methods include conducting group interviews and agreement by consensus (often used in multi-party disputes); or parties can submit names to an impartial third party such as a tribunal administrator or even a judge.

There are innumerable rosters and lists of mediators. Two that list experienced mediators (perhaps I am biased because I’m listed on both) are, for national disputes: (also a rich source of information about mediation as well as a roster of all types of mediators around the nation); and, for Maryland, DC and Virginia disputants, -- an excellent source of well-qualified dispute resolution professionals throughout Maryland, Virginia and the District of Columbia. Creative Dispute Resolutions provides tribunal administrative services and has examples of mediation and arbitration contract clauses posted on its web site.

Other factors that parties often consider when selecting a mediator are: past training, availability to meet the parties’ schedule, subject-matter experience, costs and possible conflicts.

Finally, and perhaps my most important advice -- be willing to use “their” mediator. If the mediator is a reputable neutral – easily learned by checking references -- then you have a lot to gain and little to lose by agreeing to the other side’s mediator. First, you will have started the negotiations with a positive achievement. Second, "their" mediator might be able to help the other side understand the wisdom and strength of your case -– after all they must have confidence in the mediator.

Remember the mediator, even an evaluative mediator, does not have the power to make a final decision. Only the parties can agree to resolve a mediated dispute. So you are not giving someone your proxy to resolve the dispute. You always have the final say.

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

1 comment:

  1. Daniel,

    Nice article -- I agree with your comments.

    Philip J. Loree Jr.