How to Choose a Mediator
by Erik Wheeler
Posted on January 1, 2019 at 12:00 PM
Informed consumers know about the benefits of mediation: significantly reduced legal expenses, increased control of the outcome, and generally more durable agreements. But how do you find a mediator who is right for you?
This guide provides important information and considerations to help you find and select a mediator.
Assessing Mediator Qualifications
As you review a mediator’s profile, you should consider the following regarding mediator qualifications:
The mediator's training:
Mediators are trained in a unique set of skills in facilitation and negotiation, often with specialized training in the theory of conflict. Look for specific training in mediation. This may be a basic 28-hour training in mediation; a Masters in Mediation requiring years of study and training; or somewhere in between. Some mediators may have additional training or certification in special areas such as divorce and family mediation, or foreclosure mediation. A formal teaching program will provide the mediator with important theory and skills in helping clients work through conflict.
Some mediation membership organizations (such as the Academy of Professional Family Mediators) offer certifications for their mediators. These certifications generally require a combination of training and experience.
If some cases, years of experience may be a substitute for training. If the mediator does not have formal training, ask about his or her years of experience and number of cases completed in the subject area of your dispute.
Your impressions of the mediator:
You are looking for someone who knows how to facilitate dialogue so that it is productive; who helps you both negotiate effectively; who is impartial; and who understands the relevant court procedures for the topic area that pertains to your mediation. The mediator understands conflict and how to help people work through it in a constructive way.
How to choose a mediator
As with selecting any professional service, there is no simple formula for choosing a good mediator. You’ll need to consider training, experience and reputation, as well as less tangible aspects such as your impressions of the compatibility of his or her style for your needs.
You can use the following as a guide.- Decide what you want to achieve. Think about your goals for mediation. Some things to consider include:
- Do you want a mediator who will suggest options to help move you toward agreement? Or would you prefer that the mediator encourage both parties to drive the process and determine solutions?
- What are the dynamics of your conflict? Is there a particular dynamic in your relationship with the other party that typically blocks resolution? Do you feel there is a power imbalance that you would like the mediator to help address?
- What kind of time frame would you like? Do you have a hard deadline, such as a court hearing? Or do you need to proceed gradually and slowly?
- How do you want to formalize your final agreement? Do you need a document that can be filed in court? Or do you simply need a summary of the agreement that you both will refer to in the future?
- Compile a list of names Start with a search for mediators in your area. Enter your town. Next, restrict the search by the topic: for example, “Family” for divorce or parenting issues; or “Landlord-Tenant” for issues involving leases.
- Evaluate the mediator based on profile Now review each mediator on the list to assess whether he or she will meet your needs by reviewing the mediator’s training, areas of practice, rate, and description of services.
- Consider your budget. As you review each mediator’s rate, your budget will help you decide whether a particular mediator is an option. Keep in mind that often you will share the cost of mediation evenly with the other party. Also, for family mediation, some states offer subsidized or free mediation programs.
- Call and interview the mediator After you have narrowed your list in the previous step, call each mediator to ask questions and get to know them better. As you talk with the mediator, observe his or her interpersonal skills and assess the following attributes:
- Neutrality
- Good listening skills
- Excellent communication skills
- Ability to define and clarify issues
- Calm demeanor
Questions to Ask
- Initial consult: Does the mediator charge for an initial phone call or meeting to determine whether the parties want to move forward?
- Rate: Does the mediator charge by day or by hour, and what is the rate? How does he/she charge for partial hours or days? Are there any additional fees? Does the mediator require a retainer (an initial deposit equal to several hours of work)? Does the mediator offer a sliding scale? Are there additional charges? (For example, writing agreements.)
- Style: Does the mediator tend to use group session with both parties in the same room, or shuttle diplomacy (parties in separate rooms)? Does the mediator encourage the parties to communicate directly, or does he or she prefer to control the communication?
- Conflict of interest: Does the mediator have any prior relationship with the other party? Does that mediator have any bias or conflict of interest in this particular case?
- Support person: Can you bring a support person if desired, such as a family member, friend or attorney?
- Remote parties: Can the mediator do mediations with one or both parties attending by videoconference or phone?
Assess
Now assess the various mediators you have contacted, and narrow your list based on your interviews. You need to feel comfortable with the mediator, and ensure that he or she is a good fit. If there are two mediators that you are considering and they seem equally qualified, go with the one you had a better connection with. Compatibility and trust in the mediator are important ingredients to ensure an effective mediation.
Propose mediators to the other partyRemember that the other party will need to agree on the choice of mediator. Therefore, you may be most successful if you suggest two or three mediators to the other party.
Propose the mediator name(s) to the other party. Or you can ask if the mediator will call the other party to propose mediation. However, if the other party is not aware that you are considering mediation, you should consider introducing the concept to the other party before the mediator calls. If the mediator’s call comes as a surprise to the other party, they may become defensive and wary, which could impede your efforts to use mediation. However, your experience may indicate that the other party will respond better to the mediator. Trust your judgement.
Sometimes parties are open to mediation, but are in conflict about which mediator to use—they may mistrust a mediator chosen by the other party, or may simply prefer another person. Keep in mind that disputes about selecting a mediator will only delay resolution of your disagreement, so it may be better to accept the other party’s choice if it will allow you to move forward.
Prepare
Finally, before the mediation you can begin preparations to ensure that you use the session as effectively as possible. Learn more in How to Prepare for Mediation.
Frequently Asked Questions
Do mediators need to be licensed?
No. As of 2019, there are no states in the United States which require a license or certification to practice as a mediator. However, almost all states maintain a list of mediators who have been approved to receive referrals from the court, and in order to be accepted the mediator must meet certain requirements.
State approval requirements are generally a combination of training and experience, and vary widely from state to state. Different states may refer to them as “on the roster”, an “approved mediator” or a “certified mediator”. Court rosters are generally of two types: family, for divorce, parenting and child custody; and civil, for lawsuits pertaining to breach of contract or malpractice. Some states have rosters for more specific topics, such as Environmental Court or "Economics of divorce".
Keep in mind that certification or inclusion on a roster does not confirm that the mediator has attained a particular level of competence — instead, it means that he or she has completed certain trainings and/or had a certain amount of experience. You will still need to make your own determination of a mediator’s skill level.
Nonetheless, a mediator’s certification or inclusion on a roster is another aspect you may want to consider when comparing mediators. On Mediation Resource, you can find whether the mediator has this status by reviewing the section of the profile titled “Certifications or Rosters”.
Will the mediator advise us on legal issues?
No. It is a common misconception that mediators will provide legal advice, or make determinations about the legal strength of one party’s position. Instead, the mediator’srole is to be impartial—and giving advice or making a legal determination would violate this role. Also, for many mediators, the self-determination of the parties is of primary importance, and getting involved in the legal details could undermine the parties’ ability to fully control the outcome and agreement.
Another misconception is that the law, or a contract, provides clear guidance about what is “fair” or allowable in a specific situation, and therefore, the dispute can be resolved by requesting an attorney’s interpretation. However, this rarely brings agreement, because legal language is usually open to a variety of interpretations. As a result, when the client asks for recommendations on negotiations, the attorney will often ask, “What do you want?”. It is in your best interest to carefully think through what outcome you would like and what seems fair, and then negotiate with the other party until you come to agreement.
Author
Erik Wheeler holds a Masters in Mediation and specializes in family and business mediation.
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