If you are interested in trying mediation, it is important that you choose the mediator with care. In most states, there are no legal restrictions preventing anyone from acting as mediator, nor is any license required. Mediation is too new and ill-defined to conform to an objective standard, and you may encounter “mediators” whose ideas of the enterprise differ sharply from your expectations.
Don’t expect to have a one-on-one conversation with the mediator. Any mediator who values impartiality knows how crucial the first contact can be, and will either remain inaccessible unless you and the other parties are simultaneously part of the contact, or try to minimize contact with you so as not to create a relationship with one party that could result in misunderstandings later on. A query to the office assistant should be sufficient to determine whether the mediator is taking on cases, what the fees are, a rough estimate of the number of sessions typically necessary to reach an agreement (four to six, on average), and whether the mediator will draft the agreement that results from the mediation and help prepare any necessary court papers.
Because there are many approaches to mediation, you and the other parties should have a clear idea about what you need from a mediator. Here are some questions that might help form that idea.
1. Why did you become a mediator? What do you see as your goal for a mediation?
The mediator’s personal and philosophical orientation can help you measure your own goals against the mediator’s.
2. What kind of commitment do you require from the parties to agree to mediate?
A mediator who demands a commitment to the process may indicate inexperience or a tendency to overly control the process. No mediator should compel you to stay in the mediation against your will.
3. Will you want to meet separately with us? If so, why? And if so, would you hold secrets?
Mediators who insist upon separating the parties are usually not able to handle the conflict when the parties are together. And if they hold secrets on top of meeting separately with each of you, they are likely to assume a role closer to arbitrator than mediator.
4. What is your view of the role of law in mediation? Are you familiar with the law? Will you tell us how you think a court would decide our case?
The role of the law in mediation is critical to the success of the process. What you should be looking for is a mediator who is well informed about the law or can work effectively with your lawyers to include the relevant legal information, and at the same time does not want the law to dictate the outcome.
5. How familiar are you with the substantive areas relevant to the context of our dispute?
Here, you and the other party(ies) will need to decide whether it is preferable that a mediator has a background relevant to the substance of your dispute (which can prove very useful in understanding the dimensions of the conflict) or lacks such knowledge (which can help avoid biases that can come from a substantive background in the field).
6. How do you feel about our using consultants, including consulting lawyers? Would you talk directly with our lawyers?
Choose a mediator who will let you consult with lawyers or other technical experts. You might otherwise ignore the realities that must be faced. If, on the contrary, the mediator wants to be the one who is in contact with your lawyers, you run the danger of having the lawyers and the mediator control the outcome.
7. How do you see our role in our communication with each other? What is the place of your feelings in this process?
This will weed out mediators who are exclusively result-oriented and don’t understand the importance of the parties dealing with each other and what is really at stake in the conflict. The parties must be able to communicate directly with each other. The answer to the second question will indicate the mediator’s comfort with the subjective as well as the objective dimensions of your situation.
8. How do you feel about our talking to each other about our conflicts outside the mediation office?
You are looking for a mediator who is going to give you a balanced view that respects your primacy as decision makers, and who warns you of the dangers that can arise from your dealing with each other without someone else present.
9. How would you deal with stalemates?
Beware of mediators who try to coerce you into an agreement. You want to make sure that the mediator will give the parties enough room to explore their disagreements thoroughly so you don’t settle for a short-cut solution that might not last or be as mutually satisfying to the parties as other possibilities.
10. How much mediating experience do you have?
It is important that the mediator have enough experience that you do not feel like guinea pigs. But a mediator who claims to have seen it all might peg you or the dispute as this or that type. Most mediators come from the background of law or psychology, but those who have fully embraced mediation know that both the psychological and legal dimensions of the issues are important to the process of mediated conflict resolution.
In deciding on a mediator, by far the most important criterion is whether or not you and the other party(ies) feel the candidate can understand you and your issues. Any discrepancy on this question — a “yes” from you, a “no” from the other party(ies), or vice versa — does not bode well.
You’ll also get a sense, during that first session, of what it’s like for the parties to be in the same room discussing the particulars of the conflict. Are all parties ready to do the work to make the necessary decisions? Do you feel that the presence of lawyers would be helpful or necessary? If you’re troubled by these questions, don’t be afraid to ask the mediator for an opinion.
Consider the candidate’s particular style. Is the person:
* at the “muscle” end of the spectrum (taking on the decision-making role)
* at the laissez-faire end (too committed to the parties’ right to decide to intervene in any way)
* or somewhere in between?
The danger of picking a mediator at the “muscle” end is that you are actually choosing a process much closer to arbitration than mediation and will run the risk of being dissatisfied with a result chosen by an outsider. The risk of the laissez-faire mediator is that the stronger or more manipulative of the parties might be able to maneuver the other into an unfair agreement without the mediator blowing the whistle. The questions above will help elicit the candidate’s mediation style, but ultimately it will be up to each of you to agree on the kind of mediator you are comfortable with.
Adapted from: A Guide to Divorce Mediation, Gary J. Friedman, New York, NY: Workman Publishing, 1993; pp 61-64.
Gary Friedman is the co-Founder and co-Director of the Center for Mediation in Law.
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