The following information comes from A Consumer Guide to Selecting a Mediator, published by the Alaska Judicial Council in 1995 under a grant from the State Justice Institute. We gratefully acknowledge their permission to reprint a portion of the guide.
Five steps to choosing a qualified mediator
Because no easy formula can predict mediator competence, the consumer must do some groundwork before selecting a mediator. First, understand the mediation process. After you understand the basics, you can follow five steps to choose a mediator:
- Decide what you want from mediation;
- Get a list of mediators;
- Look over mediators' written qualifications;
- Interview mediators;and
- Evaluate information and make decision.
These steps are described on the following pages. Remember during your search that a mediator should remain neutral and treat both parties with equal fairness and respect.
Step 1. Decide what you want from mediation
Think about your goals for the session. Do you want a mediator who suggests options in order to help move the parties towards agreement? Or, do you want a mediator who resists offering opinions so the parties feel responsible for their agreement? Think about past attempts at negotiation and problems with those attempts. What are your choices if mediation does not work?
Think about your abilities. What are your strengths and weaknesses as a negotiator? What are the other party's strengths and weaknesses? What are your emotional limitations? Do you expect the mediator to help you stand your ground if the other person negotiates better than you or has more "power?" Thinking about these issues is especially important if you feel vulnerable, scared or unable to express your needs. If there has been abuse and/or violence between you and the other party, you should discuss these matters beforehand with the mediator, your attorney, or a trusted advisor to decide whether engaging in the mediation process is advisable.
Think about the dispute and the context in which you must resolve it. What is the timeframe? Is this a commercial dispute between experienced insurance company representatives, or is it a divorce involving an emotional child custody decision? The approach or model that commercial disputants might prefer may differ greatly from the one preferred by a mother and father.
Consider your budget. How much you can spend might limit your choice of a mediator or mediation program.
Many mediators and dispute resolution firms or services can help you understand what services would be best for your dispute. Some will contact the other party to the dispute to introduce the concept of mediation.
Step 2. Compile a list of names
You can get a list of mediators from several sources: work of mouth, written lists, and referral services.
Word of mouth. Ask a friend, your attorney, your therapist, or another professional. Describe your case to a mediator and ask, "Other than yourself, who are the most skilled mediators in this kind of case?" Talk to people who have been in a mediation with the mediator (you can ask the mediator for a list of clients). What was their case about and what were their impressions of the mediator?
Written lists. Check written lists such as this directory. Check local listings in the Yellow Pages. Martindale-Hubbell publishes a national Dispute Resolution Directory containing the names of some 60,000 service providers. Many local mediation organizations maintain directories of member-mediators.
Referral services. Many national mediator membership organizations and trade organizations keep lists of practitioner members and offer referral services. Some may charge for the referral services. In some states, the local bar association will make referrals.
Community mediation centers. Over 300 neighborhood mediation or dispute resolution centers offer services throughout the country. Most train and supervise volunteer mediators and do not charge the public for their services. Some have sliding fee scales based on ability to pay. Look for a center in your area.
Checklist: Get names
- Ask people and professionals whom you know;
- Look at directories; and
- Call referral services (ask whether they charge you to refer you to a mediator).
Step 3. Evaluate written materials
Call or write several mediators on your list and ask them to send you their promotional materials, resume, references, and a sample of their written work. If you are using a community mediation center, ask for materials about the center itself. These materials may cover the following topics.
Mediation training. How was the mediator trained? Some mediators receive formal classroom-style training. Some participate in apprenticeships or mentoring programs. While training alone does not guarantee a competent mediator, most professional mediators have had some type of formal training. How many hours of training has this mediator had? How recent was the training?
Experience. Evaluate the mediator's type and amount of experience (number of years of mediation, number of mediations conducted, types of mediations conducted). How many cases similar to yours has the mediator handled? A mediator's experience is particularly important if he or she has limited formal training.
Written work. Some mediators will write up notes about agreements or even draft agreements for the parties. Other mediators do not prepare written agreements or contracts. If your mediator will prepare written work, you may want to review a sample. Samples may include letters, articles, or promotional materials. Any sample of the mediator's written work should be clear, well organized, and use neutral language. Agreements or contracts should have detailed information about all items upon which the parties have agreed.
Orientation session. Some mediators offer an introductory or orientation session after which the parties decide whether they wish to continue. Is it offered at no cost, reduced cost, or otherwise?
Cost. Understand the mediator's fee structure. Does the mediator charge by the hour or the day Hoe much per hour/day?
Other considerations. Does the mediator or the mediation center carry professional liability insurance that specifically covers mediation? Is the mediator certified, and if so by whom? While certification usually shows the mediator has completed a specific amount of training or education, training and education do not guarantee competence. Ohio does not currently have a system of mediator certification.
Does the mediator belong to a national or local mediation organization, and is the mediator a practicing or general member? Cost may prevent some competent mediators from joining organizations, becoming certified, or carrying liability insurance.
If you are using mediators from a community mediation center, you may want information about the center. How long has it been in operation? How does the center select volunteer mediators? How does it train the mediators? How are the mediators supervised? What types of cases does the center handle?
Checklist: Evaluate written materials
- Fees: Hourly? Daily? How much?
- Education: How much? What? How recent?
- Experience: What kinds of disputes? How many mediations? Areas of specialization?
- Written Work (if available): Understandable? Complete? Concise?
- Insurance: Yes? What kind?
- Professional memberships, certifications, adherence to ethical standards?
Step 4. Interview the mediator
Talk to each mediator in person or by phone. During the interview, observe the mediator's interpersonal and professional skills. Qualities often found in effective mediators include neutrality, emotional stability and maturity, integrity, and sensitivity. Look also for good interviewing skills, verbal and nonverbal communication, ability to listen, ability to define and clarify issues, problem-solving ability, and organization.
During the conversation you also may want to ask questions about matters covered in the written materials and other topics. Some topics to discuss during the interview include:
Training, knowledge and experience. Ask the mediator, "How has your education and experience prepared you to help us work out this specific dispute?" If the mediator had formal training, did it include role play and observations of skilled mediators? While training and education do not guarantee competence, training is most effective when it includes practice-oriented segments such as role play and observation.
Ask, "Do you participate in continuing education, ongoing supervision, or consultation?" Many professional mediation organizations encourage or require their members to participate in ongoing education or other professional development.
People often ask whether a mediator should be an expert in the subject of dispute. For example, should the mediator in a commercial mediation be an expert on industry standards and practices? The answer depends on the type of dispute, the mediation program (for example court-referred or administrative agency), and the parties' expectations and needs. Ask the mediator if he or she thinks subject matter expertise is necessary for this dispute, and why or why not.
In some cases, the parties may prefer a mediator with no special knowledge of the subject. Benefits of this approach include avoiding a mediator's preconceived notion of what a settlement should look like and letting the parties come up with unique or creative alternatives.
In other cases, for example where the subject of the dispute is highly technical or complex, a mediator who comes to the table with some substantive knowledge could help the parties focus on the key issues in the dispute. Or, parties may want someone who understands a cultural issue or other context of the dispute.
Style. Ask, "What values and goals do you emphasize in your practice?" For example, does the mediator encourage parties to communicate directly with each other, or does he or she control the interchanges? The mediator should be able to describe his or her style of mediation and his or her role in the mediation process. Remember that different mediators may practice their craft in different ways, although some mediators can change their style to suit the parties' specific needs.
Another stylistic difference is the use of caucus. A caucus is a meeting between one of the parties and the mediator without the other party present. Some mediators caucus frequently during mediation, while others seldom or never use this procedure. Ask the mediator whether he or she uses caucuses, and if so, when.
If the mediator works for or is associated with a mediation program or organization, ask what values and goals the program emphasizes. For example, the style or requirements of a mediator who practices in a court program designed to reduce court caseloads may differ from the style of someone whose practice does not involve the same time pressure.
Ethics. Ask, "Which ethical standards will you follow?" (You may ask for a copy of the standards.) All mediators should be able to show or explain their ethical standards (sometimes called a code of conduct) to you. If the mediator is a lawyer or other professional, ask what parts of the professional code of ethics will apply to the mediator's services. Ask, "Do you have a prior relationship with any of the parties or their attorneys?" The mediator should reveal any prior relationship or personal bias which would affect his or her performance, and any financial interest that may affect the case.
Confidentiality. The mediator should explain the degree of confidentiality of the process. The mediator may have a written confidentiality agreement for you and the other part to read and sign. If the mediation has been ordered by the court, ask the mediator whether he or she will report back to the court at the conclusion of the mediation. How much will the mediator say about what happened during mediation? How much of what you say will the mediator report to the other disputants? Does the confidentiality agreement affect what the disputants can reveal about what was said? If the parties' attorneys are not present during the mediation, will the mediator report back to them, and if so, what will the mediator say? The mediator should be able to explain these things to you.
Logistics. Ask who will arrange meeting times and locations, prepare agendas, etc. Will the mediator prepare a written agreement or memorandum if the parties reach a resolution? What role do the parties' lawyers or therapists play in the mediation? Does the mediator work in teams or alone?
Cost. Ask the mediator, "How would you estimate costs for this case? How can we keep costs down?" Ask whether there are any other charges associated with the mediation. Does the mediator perform any pro bono (free) services or work on a sliding fee scale? If more than one mediator attends the session ,must parties pay for both? Does the mediator charge separately for mediation preparation time and the actual mediation?
Special considerations if there has been domestic abuse between you and the other party:
If there has been domestic abuse, violence or threats between you and the other party, you should understand how it can affect the safety and fairness of the mediation process. Talk to your lawyer, a domestic violence counselor, women's' advocate, or other professional who works with victims of domestic abuse before making the decision to mediate.
All family mediators should be knowledgeable and skilled in the screening and referral of cases involving abusive relationships. They should be able to explain the potential risks and benefits of mediation when control, abuse, and violence issues exist. Any mediator who handles such cases should have special training in domestic violence issues and should offer special techniques and procedures to minimize risk and minimize safety of all participants.
If you decide to try mediation, it is important to let the mediator know about the abuse or violence. Some ways you can tell the mediator include asking your lawyer to tell the mediator or telling the mediator yourself. You can tell the mediator yourself in the initial telephone call, or when filling out any written questionnaires. If there is an active restraining order, make sure the mediator knows about it before the first session.
Ask what domestic violence training the mediator has had and if the mediator has worked with similar cases. Ask how the mediation process can be modified to make it safer and more fair. Can the mediation be done by telephone or in separate sessions ("shuttle mediation")? Can a support person (domestic violence advocate or your attorney) be present during the mediation? If your case is not suitable for mediation, what are your alternatives? Ask for referrals to other resources, such as local domestic violence counselors.
Checklist: Talk to the mediator
- What ethical standards apply?
- What approach to mediation?
- More about training and experience?
- Logistics (meeting, written agreements)?
- How much will this cost?
- Domestic abuse concerns?
Step 5. Evaluate information and make decision
During the interviews, you probably observed the mediators' skills and abilities at several tasks. These tasks, which mediators perform in almost all mediations include:
- Gathering background information;
- Communicating with the parties and helping the parties communicate;
- Referring the parties to other people or programs where appropriate;
- Analyzing information;
- Helping the parties agree;
- Managing cases; and
- Documenting information
Ask yourself which of the mediators best demonstrated these skills. Did the mediator understand your problems? Did the mediator understand your questions and answer them clearly? If the other party was present, did the mediator constructively manage any expressions of anger or tension? Did the mediator refer you to other helpful sources of information? Did the mediator understand what was important to you or pick up on an aspect of the conflict that you were not completely aware of yourself? Did the mediator ask questions to find out whether mediation is preferable or appropriate? Did he or she understand the scope and intensity of the case? Did the mediator convey respect and neutrality? Did you trust the mediator? Of course, not every orientation permits the mediator to demonstrate all these skills, and every mediator has relative strengths and weaknesses. But you should be satisfied that the mediator can perform these tasks before beginning.
Review the other questions on this checklist. Make sure that the mediator's cost and availability coincide with your resources and timeframe. The other parties to the mediation must agree to work with this person, too. You may want to suggest two or three acceptable mediators so that all parties can agree on at least one.
Finally, consider evaluations of others who have used this mediator or your own previous experience with this mediator. If applicable, consider the goals and procedures of any organization with which the mediator is associated.
- Check the mediator's skills and abilities against the tasks listed above and your own expectations.
- Was the mediator respectful and neutral to all parties?
- Can you afford the services?
- Can the mediator work with your timeframe?
- Will the other parties agree to the mediator?