The increasing recognition that mediation has significant advantages over other dispute resolution options, inevitably leads to an increase in demand for mediators. In alignment with economic principles an increase in demand results in a supply increase and the opportunity to choose the appropriate mediator for the dispute, which leads to the question, “How do you choose the mediator?”
In 2018 CEDR published their eighth Mediation Audit of attitude and experience from a survey of lawyers’ responses which they identified as the top factors in determining why individuals secured commercial appointments:
In ranking order:
Professional reputation – experience/status
Professional reputation – mediating style
Whilst professional reputation and experience has remained near the top ranking over the last 10 years of auditing, it is interesting and a probable reflection of a changing market place, that availability is the top ranking. There is no reason why mediators should be immune from the same market pressures; you cannot be in more than one place at the same time, and you can price yourself out of the job.
The lower ranking for mediator’s fees possibly reflects they are of less importance to lawyers who do not pay their fees than the higher ranking reasons. However, it is reassuring that cost does not top the list; if cost was the only deciding factor there would be a real risk of a fall in standards which would be detrimental to the benefits of mediation.
There are many aspects to a mediator’s experience and not just the number of lead mediator roles. Each mediation is unique; different issues, dynamics and influences so a more relevant consideration is the number of involvements; as a client, representative, observer, assistant, co-mediator and mediator. Some mediators are active in no-fee earning community mediations which demand a high degree of empathy with the parties, an appreciation and respect of the culture and patience. It is often stated that a successful community mediator will have greater skills and experience to handle any commercial mediation!
There is a temptation for parties in the dispute to choose a ‘heavy weight’ mediator especially if they are being guided by appointed lawyers who have previous case experience. There are disadvantages to this approach: the mediator may be in high demand and thus unavailable; their fees may be higher than the market average due to the higher demand, and another factor is the proposed mediator may not be the best fit for the nature of the dispute and the needs of the parties. If there is any doubt on suitability there is no harm in telephoning or meeting the mediator and making an assessment.
If the recommendation to mediate a dispute has been accepted but cost is a concern, all professional accredited mediators will provide full details including the fees for pre-reading mediation material, speaking to all the parties and/or their legal representatives and confirming the mediation time allocation and overtime fees. The CEDR 2018 audit reports that fees have dropped by 19% since 2016 for more experienced mediators but only 2% for junior mediators.
Reference has been made to accredited mediators; any person can act as a mediator however it is strongly recommended to choose a mediator who has been trained specifically in mediation to industry accepted standards. Membership of Civil Mediation Council (CMC) shows the person has successfully completed an accredited training course; undertakes suitable levels of continuous professional development; follows an appropriate Code of Conduct; offers access to a complaints process and possesses professional indemnity insurance.
A common question is, ‘do you need a mediator with subject-matter expertise or knowledge of a particular industry?’ For certain disputes’ ‘speaking the same language’ is a major benefit. For disputes in esoteric fields such as shipping it makes sense to employ mediators who have knowledge and experience, for example, if you have a laytime and demurrage dispute it would not exactly boost the parties’ confidence to have a mediator who does not understand what is laytime and demurrage. Specific knowledge can make the mediation process more efficient and enable the mediator to focus on the key issues in the dispute; however and alternatively, the parties may prefer a mediator with no specific knowledge to avoid preconceived notions of a possible settlement enabling them to focus on working with the parties to find a unique and creative resolution.
The appointment of a mediator may be persuaded by their understanding of cultural issue, similarly the actual location of the mediator which was identified as an important feature in the CEDR survey. However with telephone and video conference facilities now being offered as an alternative to an all-party meeting, the possibility exists of selecting the preferred mediator wherever their location.
Finally, a major consideration is mediator style, the mediator should be capable to change his style to suit the parties’ specific approach and needs. The aim is to facilitate a settlement so it is essential the mediator keeps the negotiation moving until such time as each party’s best position is on the table. Successful mediators are tenacious and will not give up and adjourn the mediation merely because the parties are too far apart. They must be prepared to change their approach from facilitative to evaluative to transformative as necessary to reach a settlement.
Choose the mediator to go the extra mile to reach settlement every time!