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How to choose a mediator.

Posted on 21/05/2015 · Posted in Expert Information, Mediation

Selection of a mediator should be a bit like choosing a chef for a special meal. When planning a dinner party, there are essential questions to address: what sort of cuisine do you want? How many people will be attending? Is the party a casual get-together or a posh gala? The success of the party depends on selecting the right chef, who must not only feed the party but do so in the most appropriate and efficient manner.

Like chefs, mediators bring tools, skills and experiences to the table that are not universal in their application. Mediators do not come in ‘one size fits all’, and so to choose the right mediator you need to look carefully at your dispute and the possible and desired outcomes for you and your opponent. Only then will you be able to determine which ‘chef’ will help you get those results.

Nature of the Dispute

In thinking, keep to the simple. In conflict, be fair and generous.”
Tao Te Ching

The search for a mediator should start with a look at your own position. What sort of dispute are you involved in? A commercial dispute could benefit a mediator with broad business knowledge or specific industry experience; a domestic disagreement, depending on the details, might benefit from a mediator with counselling experience, knowledge of child-custody issues, or government support programs. Mediator approaches to problems, as well as knowledge of the field, may also affect whether someone is right to help with your problem.

The second thing to look at might be the current stage of the dispute for which you are seeking help. Why is there a dispute at all? Do the parties have all of the information they need? Do they occupy equal positions in the relationship? Are there emotional or collateral issues clouding the judgment of some of the players? Each of these situations may call for a different mediation approach. For example, a dispute arising early in a business relationship may be caused by a lack of information or a natal lack of creativity and could be best resolved through practical business methods that allow the relationship to continue on firmer ground. On the other hand, a long-standing and entrenched battle between domestic partners my call for a stronger, objective party to play a more active part in deciding an issue for them, helping them to decide issues leading to a final separation.

This brings up a third criteria for choosing a mediator: what sort of resolution do you want from the situation? Do you expect to keep working with the party on the other side? Do you want a ‘clean break’ from the relationship? Do you want justice, or a cost-effective resolution? Does your opponent agree with you on the acceptable forms of outcome? These questions emphasise an important difference between mediation and other forms of dispute resolution: the mediation process is adaptable to what the parties seek in terms of a final outcome. While litigation in court may ultimately (and solely) honour the resolution of the conflict, mediation can be much more effective in tailoring outcomes to the parties’ needs.

Mediation Approaches

One way to select an appropriate mediator then is to imagine what is needed to resolve your dispute. A mediator may be able to offer several techniques to guide the parties toward a ‘win-win’ result:


I enjoy mediation. I think the artist’s position is often to mend the things we feel are broken. Whether that’s between two cultures or two thoughts. We’re always trying to reach, trying to expand something.”

K’naan

Information gathering: A mediator can help investigate the issues between the parties. Often a dispute occurs where the parties simply don’t have enough information, or have differing information about their common enterprise. A mediator experienced in the field may bring an objective view to the party, and have new or different ideas about information that, when brought to light, helps the parties work together to get over the challenge before them. This is especially true where you bring in a mediator with special experience in a complex field, e.g. financial transactions, commodity purchase contracts, etc. In these cases, a good mediator often doesn’t decide how to solve the problem between you and your opponent; s/he helps you discover what you are missing that will allow you to solve it yourselves.

Education or advising: In many cases, the mediator facilitates resolution by working with the parties individually to guide them toward points of resolution. The mediator may spend time advising one party of options available, guiding and advising the parties toward workable solutions. The mediator may construct scenarios that call for exchanges of concessions, or craft and reward concessions from each party that lead to a balanced resolution. In such cases, the mediator plays a more active role getting to the final goal, and parties with more developed or longer-lived disputes may benefit from that stronger approach.

Pressing for resolution: Mediation is different from arbitration or going to court in that the mediator does not in the average case decide the way the dispute is to be resolved. Rather, the mediator coaches the parties in a direction that leads the parties to arrive at a compromised but advantageous solution. In some instances, though, where the parties have different goals or other issues prevent them from being more cooperative in the mediation process, a mediator may adopt a more forceful role. Rather than guiding and observing the parties as they solve their differences, the forceful mediator may press the parties for concessions and direct them toward a specific outcome. As in other mediation scenarios, this sort of ‘arm-twisting’ is solely at the control the of disputants—they have to agree to let the mediator take a firmer hand—but an experienced mediator will set ground rules that make the agreement to do so more appealing, and tying that process to a likelihood of resolution sweetens the deal. The ‘pain’ in this case is worth the gain when the dispute is finally resolved to everyone’s satisfaction.

Where to find a mediator

Experienced mediators will be able to advise you how and when they have applied these various approaches. Once you have assessed your dispute and the parties are willing to engage in mediation, the best ways to find the right mediator are:

  1. friendly references. World of mouth within an industry may identify the more effective specialists and a discussion with someone who has been through mediation with a particular mediator can give you important insights into the mediator’s method and style;
  2. court-annexed programs will have a roster of mediators that the courts recommend;
  3. government and other private agencies offer referal services that will idenitfy possible mediators for your situation;
  4. the Expert Witness Institute offers a mediation service which will help you identify and retain the right mediator for your needs. Other sites may offer similar services.

If you have done a good job of objectively assessing your differences with your co-disputant(s), providing the candidate mediator with a brief of the dispute and the possible desired outcomes will be the best starting point for getting your mediator, and mediation under way.

Expert Evidence Limited is a professional firm concentrating on the four main areas of dispute resolution; acting as expert witnesses in financial litigation, mediation, arbitration and adjudication. The firm has a civil, criminal and international practice and has advised in many recent cases. Areas of specialisation include banking, lending, regulation, investment, and tax.

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Disclaimer – Please confirm any of the above views with your solicitor. Expert Evidence takes no responsibility or provides any guarantee that the views above are correct for your particular case or jurisdiction.