How Can I Tell the Right One?
Selecting a Mediator is More Important Than Ever, Or?
Mediation is the primary case management device used by the courts to resolve disputes, and the mediation process is frequently included in the dispute resolution section of most contracts. In some situations, mediation is even mandatory. What is interesting to note is that there are no uniform, national standards for training or regulating mediators. Some courts have standards for mediators on their rosters, but private practice mediators are virtually unregulated. Unfortunately, mediation has not met the test of a true profession. In this article, the author shares questions to consider asking a prospective mediator.
Today, mediation is the primary case management device used by the courts to resolve disputes, and the mediation process is frequently included in the dispute resolution section of most contracts. In some situations, mediation is even mandatory. What is interesting to note is that there are no uniform, national standards for training or regulating mediators. Some courts have standards for mediators on their rosters, but private practice mediators are virtually unregulated. Unfortunately, mediation has not met the test of a true profession.
Mediation certainly has significant benefits over most other forms of dispute resolution, because it is faster, less expensive, and most importantly, the parties retrain control over the outcome. In fact, mediation is usually the parties’ last opportunity to control the outcome. Trial and arbitration leave the outcome to a decision-makerâ€”not the parties. Forensic experts, CPAs, lawyers and others who are regularly involved working with or representing clients in a variety of legal proceedings need to diligently review who will serve as a mediator.
Because there is no universal training requirement for mediators, no agreement on how many hours of instruction or training techniques used, such as engaging in realistic roleplay. In fact there is no uniformity regarding how competent the trainers are; and since most states and courts are silent on the amount of actual mediation experience is appropriate, selecting a qualified mediator can be a bit challenging.
Although some courts, bar associations, and mediator membership groups may have a code of conduct or ethics, many times there is no enforcement mechanism should a mediator not follow the guidelines. There is no national credentialing process for mediators, and some who claim to be “certified” mediators only possess a “certificate of course completion”. So how can anyone be sure they are getting a trained, experienced, and competent, mediator? What questions need to be asked of a prospective mediator to make participation in mediation worthwhile?
A good starting point is to ask some basic questions, which can help ensure that an appropriately trained, experienced, and ethical mediator is selected.
- Training: “What mediation training have you taken?”
- Experience: “Have you mediated similar cases and if so, how often did they settle?”
- Ethics: “Do you know any of the parties or counsel involved in this case or have you mediated for them previously?”
- Disclosures: “How do you manage the mediation process, and what are your mediation policies and fees?”
There is critical information that you need to learn in order to make an informed decision, actually interviewing a potential mediator, and not just accepting the name of a mediator provided by the other side will enhance the quality of the mediation process.
- Training: They need to have taken at least one 40-hour mediation course that is directly related to the type of case being considered for mediation. For example, if the case involves family, custody, divorce, and related topics, then family mediation training is a must. Being trained to mediate community issues, such as landlord/tenant, does not qualify someone to handle a wrongful termination case.
- Experience: A mediator needs actual experience mediating similar cases; otherwise, they may miss the significance of a piece of information, may not be able to ask appropriate questions, or effectively manage the process.
- Ethics: Some mediators are consistently hired to mediate for a particular law firm, business, or individual. This raises significant ethical issues regarding impartiality and the potential for mediator bias.
- Disclosures: A mediator needs to provide any potential client with all forms, including confidentiality agreement, contract stating fees or other charges, cancelation policy, and any other information necessary for a party to make an informed decision. The confidentiality agreement must to be explicit regarding exceptions. In some states, attorney and mediator malpractice may be protected. Reviewing all documents before participating in mediation will help provide a more satisfying mediation experience.
Perhaps the old adage, “stop, look, and listen” could be slightly modified and then applied to mediation: “stop, ask questions, and listen to the answers”. Taking a few minutes to read and mediator’s resume, and then to actually interview the person will help to ensure that the next mediator you use will be the right one.
Nancy Neal Yeend founded The End Strategy (TES), a Portland, OR-based dispute management and mediation firm. Ms. Yeend is a seasoned and accomplished professional, as well as a prolific writer, with a focus on conflict management and resolution. She is adept at developing programs for business, governmental entities, and not-for-profit organizations involving workplace related conflict. In addition, she is a skilled trainer and experienced course designer, specializing in communication, negotiation, problem solving, and dispute management. She mediates business and contract related matters at all stages of litigation: pre-suit, trial, and appellate.
Ms. Yeend can be contacted at (503) 481-2986 or by e-mail to Nancy@TESresults.com.