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Spoilt For Choice? How to pick the Right Mediator for the Job by Antony Sendall

By Antony Sendall

Your choice of mediator will have a direct impact on the prospects of a successful mediation outcome. No mediator can guarantee success, but a good mediator should create an expectation of success.

Mediators come in all shapes and sizes with a multitude of different backgrounds, levels of experience and levels of expertise. Some are interested in producing a proper mediated resolution as the result of a collaborative process where everyone sits at the same table, while others offer little more than “shuttle diplomacy”, keeping the parties separated while scuttling up and down a corridor carrying messages to and fro. Some have the soft skills to deal with high conflict individuals or very emotional participants, others are less comfortable in such situations. The mediator you require will depend both upon the nature and complexity of the issues at stake and also upon the personalities of the participants.

When it comes to choosing the mediator there are some very important factors to weigh in the balance:

Subject Matter Expertise

• There is a common misunderstanding that subject-matter expertise is an essential pre-requisite when choosing a mediator. There may be occasions when it should be a factor, but most of the time, it is not at all important. A broad appreciation of the context of the dispute is essential, but most competent mediators will tell you that experience shows that the fine detail of the subject-matter is rarely of any significant importance. Even in the most complex civil disputes the real reason that two commercial parties have not been able to resolve the issues between themselves has much more to do with the personalities and relationships between the people most closely involved.
• Another reason that subject-matter expertise is largely irrelevant is that the mediator has no evaluative role in deciding upon or even weighing up the merits of the competing positions. Although some subject-matter knowledge may be of advantage in challenging unrealistic assertions made by one or other party, the parties themselves should be able to feed the key information into that process, whether from their own knowledge or from the engagement of expert advisers. Indeed, too much subject-matter knowledge can be positively unhelpful if it causes the mediator to make his/her own assumptions about the underlying merits. It may cause the mediator to take too narrow an approach to the problem and therefore overlook more creative solutions to the issue.
• What the parties really need in virtually all mediations is a mediator with good mediation skills who can cut through to the true source of the conflict and help the parties to resolve it. These are usually soft skills and rarely have anything to do with the subject-matter of the dispute. Most good mediators will have mediated disputes across a vast range of subject-matters and will not feel at a disadvantage because they do not have subject-matter expertise in the matters comprised in the underlying factual context.
• Of course, there are some types of mediation where particular skill sets are important or a pre-requisite. For instance, in workplace mediation, it is essential to understand and be skilled in the different model used for mediation, including the widespread use of co-mediation. It is also a form of mediation where it is highly unusual for the parties to be represented by lawyers, so experience and knowledge of employment law and/or good HR practice is probably a pre-requisite as the parties themselves may have little idea of what can lawfully or practically be done to resolve some issues.

Mediation Skills

The skills of a mediator are mostly not the skills of a lawyer or a judge. They are soft skills which often employ elements of psychology, coaching, counselling, game theory, NLP and other related disciplines. Excellent ‘people skills’ are certainly required, especially an ability to display empathy and to be a good ‘active listener’. Lawyers and retired judges are often drawn towards mediation, but they do need to be drilled during their mediation training to remember to leave most (if not all) of their legal toolkit at the door of the mediation suite. It is not always easy to find out about a mediator’s mediation skills in advance of a mediation. However, there are a few things that can be considered:

• Has the mediator got a blog or a website with links to published articles that may give clues as to the approach and style that is likely to be adopted?
• Recommendations from other mediators – however, unless they have co-mediated, they may not be very familiar with each other’s styles.
• Recommendations from people who have been parties in another of the mediator’s mediations. Although, it should be borne in mind that no two mediations are ever really alike and people’s impressions may well be driven more by the outcome or lack of one than a proper appreciation of the skills deployed.
• Perhaps one of the very best ways to find out about the mediator’s style and approach is just to ask directly about it. Most mediators are very pleased to discuss such things with the parties or their advisers in advance of being instructed. Some mediators will have experience of deploying a range of different styles depending upon the nature of the dispute and the characteristics of the participants.  As an aside, it can be a very valuable and useful exercise to have a pre-meeting in advance of the mediation day with the mediator so that an appropriate approach to the mediation can be considered. Most mediators are happy to offer this and although it will usually come at an extra cost, especially if the meeting is face to face, it is a cost well worth incurring in many cases.

The Nature of the Dispute

• A critical aspect of mediator selection is the nature of the dispute and not just from a subject-matter perspective, which has been discussed above. Some mediations are just about ‘carving up the pie’ or situations where a single event or set of circumstances will give rise to a one-way movement of money and little or no other possible outcome.
• However, in most cases there are other considerations in play, such as a need for the parties to continue to do business with each other or to interact with each other in some way in the future, perhaps because they are both important players in a small marketplace. Landlord and tenant or property disputes of other kinds will frequently entail the parties having to agree on the way in which they will conduct themselves in the future to avoid a repeat of the dispute.
• Sometimes there will be a prospect that there may need to be a change in mediation style of certain events occur during the mediation process which might cause a mediator to have to be flexible in approach and style. Clearly, you need to be satisfied that the mediator has the skills to adapt to what may be a very fluid situation.
• Sometimes a dispute will be very complex or entail multiple parties such that more than one mediator may be required or even a team of mediators. In those circumstances, it is important to select mediators with experience of co-mediation and those who are good ‘team-players’.

Particular Styles

As well as different approaches, such as co-mediation or different models, such as the civil/commercial ‘shuttle diplomacy’ model or the workplace model or the community mediation model, there are several different styles of mediation that can be deployed. The three main styles are usually described as facilitative, evaluative and transformative. Although they have much in common, they also have some distinct elements:

• The key focus of facilitative mediation is upon identifying the interests and needs of the parties and then assisting them to identify and agree upon a mutually satisfactory outcome. This approach can result in some very creative outcomes that do not even remotely reflect the sorts of outcomes that a court might order. Indeed, the outcomes may be no sort of reflection of the legal rights of the parties or of the comparative strengths and weaknesses of their cases. Good facilitative mediators will typically be excellent active listeners and will be good at identifying the common interests or the underlying issues that are acting as the barrier to resolution. Where emotions are running high and there is a significant personal component to the dispute, facilitative approaches can be incredibly effective. Legal expertise is unlikely to be a key factor.
• In evaluative mediation, the parties will commonly expect the mediator to have at least some subject-matter expertise and may expect the mediator to give a real steer as to the possible/probable outcomes were the matter to go to trial. In this sort of mediation, legal skills and good litigation experience may play a crucial role. The outcomes will tend to reflect more closely the sorts of outcomes that a court may order. The process also tends to follow more of a ‘shuttle diplomacy’ approach and entails more ‘horse-trading’, but this may also be combined with private caucus sessions with each party, where the mediator will make some vigorous challenges to test the positions adopted by them. This sort of approach is much more akin to some form of adjudication or arbitration and many mediators see it as not being a legitimate form of mediation as its emphasis is more upon settlement and compromise than real resolution.
• Transformative mediation is particularly apposite where there are relationships that need to be mended and rebuilt or significant common interests that need to be preserved. Workplace disputes, neighbour disputes and many forms of community mediation call for a transformative approach. There is often a need for one or both parties to undergo a transformation of their perception of the issues at stake. It is an incredibly powerful style which can yield astoundingly successful outcomes from situations that seemed intractable. The key features are excellent active listening and analytical skills which allow the mediator to find ways to help the parties to alter their whole attitude from one of active conflict to one of collaborating with each other to find ways to escape the conflict and, if possible, end it. Mediators need to be able to help parties to see and understand each other’s points of view and as a result, this approach relies much more heavily on joint meetings between the parties where they all sit around the table and discuss the issues. The outcomes of transformative mediations tend to be the most enduring because the parties really do ‘own’ the solution that they have reached together.

Conclusion

Although success rates in mediation are already very high, the prospects of a successful outcome can be very substantially enhanced by devoting time and resources to the topic of choosing the right mediator for the job. There are a huge number of people who hold themselves out as mediators, but they possess very different levels of knowledge, skill and experience. Before taking the decision to appoint, make sure that the mediator has the attributes that best fit the dispute in question. Do your research and if in doubt, ask direct questions of the mediator. If the mediator is unwilling or unable to satisfy your enquiries, approach someone else until you find someone that fits the bill.