Consumer Guide: What you need to know when selecting a mediator
Five Steps for Selecting a Mediator
What you need to know when selecting a mediator
Mediation is a way for people to work through and resolve many kinds of problems, conflicts, and disputes. Use of mediation dates back to ancient times. In Ohio, community mediation centers, courts, schools, and government entities have been using mediation for more than 20 years.
If you decide to look for a mediator to work with you, this guide provides helpful information to ensure that you receive quality services. One of the most effective ways to ensure that you receive quality services is to have a clear picture of the mediation process, the mediator's role, and what you want from mediation. Although statute and local rule regulate who can mediate cases for certain court programs, no statewide certification or credentialing for mediators exists in Ohio.
Feel free to mark up this guide, using the inserted checklist as you go. You do not have to use all of the information or go through all of the suggested steps. Refer to the organizations and resources at the end of this guide for more information about mediation.
Understanding Mediation
What Is Mediation?
Mediation is an informal, yet structured, process in which a neutral third person(s), known as a mediator, helps disputing parties to reach a mutually acceptable solution to issues that are causing conflict between them. The mediator does not decide how the dispute should be resolved, as a judge or arbitrator would, but instead guides the parties through a process in which they discuss the issues, generate options for resolving the dispute, and design their agreement.
There are a number of different mediation models that are used in Ohio and around the world, but they all share some common characteristics.
- The mediator provides a safe and comfortable environment for sharing ideas and will generally ask the parties to agree to some basic ground-rules (i.e., only one person speaks at a time, both parties act in good faith, no name-calling or shouting).
- Each party to the dispute is given a full opportunity to be heard and to share his/her perspectives on the situation.
- The mediator summarizes the information shared by each party and assists the parties in defining the issues in dispute.
- The mediator assists the parties in generating possible options for a resolution of the dispute, selecting a mutually agreeable solution, and finally, in drafting an agreement that they can carry out successfully.
Mediations can result in a resolution reached in an hour or two or can involve multiple sessions and occur over a period of several months. Some mediators use a co-mediation model in which two mediators work together to assist the parties. Some mediators prefer to use a caucus model (private meetings with each party). They may caucus with the parties before the mediation, at the beginning of the session, or during the mediation at any time. Others use a caucus only when they have exhausted other methods of helping parties who are at an impasse in their problem-solving.
Glossary of mediation terms
What Qualifications Does a Mediator Need?
Qualifications refer to the amount and type of training, education and experience possessed by a mediator. Ohio mediators often attend trainings that meet some pre-set qualifications set by either a professional organization, local rule, or, in the case of parenting mediations in juvenile or domestic relations court, qualifications set forth by the Supreme Court of Ohio. In most states, a person can offer private mediation services without taking a class, passing a test or having a special license or certification. In reality, however, many private mediators, and most of those who work for or are associated with mediation organizations and programs, have some training or experience.
Most mediation programs have their own training or experience standards for mediators. For example, community mediation centers often require their volunteers to complete a certain amount of mediation training and an apprenticeship before handling cases.
Some national and local mediation organizations also set training and experience requirements and ethical standards for their practicing members. Refer to the resources section at the end of this guide for more information. Many mediation referral services require mediators included on their rosters to have a specific amount of training and experience.
What Makes a Competent Mediator?
There is no universal answer to this question. No particular type or amount of education or job experience has been shown to predict the quality of a mediator. Successful mediators come from many different backgrounds.
Competence depends partly on the context of the dispute and the parties' expectations. It also depends on whether the mediator has the right mix of acquired skills, training, education, experience and natural abilities to help the parties resolve the specific dispute. Important skills and abilities include the ability to listen and understand, the ability to communicate clearly and facilitate calm and effective communication, the ability to remain neutral, and the ability to define and clarify issues.
How to Choose A Qualified Mediator
Because no easy formula can predict mediator competence, the consumer must do some research before selecting a mediator. First, understand the mediation process. After you understand the basics, you can use the steps on the following pages to select a mediator.
Step 1 Decide What You Want from Mediation
Think about your goals. 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 are entirely responsible for generating 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? Do you expect the mediator to help you stand your ground if the other person negotiates better than you do 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 or violence 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, or other professional who works with victims of abuse before making the decision to mediate.
Think about the dispute and the context in which you must resolve it. What is the time frame? Is this a commercial dispute between experienced insurance company representatives, or is it a divorce involving emotional issues about parenting? The approach or model that commercial disputants prefer may differ greatly from the one preferred by a mother and father negotiating a post-divorce parenting schedule.
Consider your budget. How much you can spend might limit your choice of mediator or mediation program.
Many mediators and dispute resolution services can help you understand what type of dispute resolution service would be best for your situation. Some will contact the other party to the dispute to introduce the concept of mediation.
Step 2 Compile a List of Names
You can compile a list of mediators from several sources: word 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 for this kind of case?" Talk to people who have worked with the mediator. Although confidentiality is an important aspect of mediation, you can ask the mediator for names of clients who are willing to be contacted about their experience in mediation.
Written Lists Many local mediation organizations maintain directories of member-mediators. Court and community dispute resolution programs may also provide a list of mediators. The Ohio State Bar Association has just published a directory of dispute resolution professionals in Ohio. Martindale-Hubbell publishes a national Dispute Resolution Directory containing the names of some 60,000 service providers. The Supreme Court of Ohio and the Ohio Commission on Dispute Resolution and Conflict Management do not maintain a list of individual mediators or make referrals.
Referral Services Many national mediator membership organizations and trade organizations keep lists of practitioner members and offer referral services. Some may charge for referral services. In some Ohio cities and counties, the local bar association will make referrals.
Community Mediation Centers Community or court mediation or dispute resolution programs offer services throughout Ohio. Many train and supervise volunteer mediators. Some do not charge the public for their services or charge on a sliding scale based on the ability of the parties to pay or the complexity of the case. Consult the Ohio Directory of Non-Profit Dispute Resolution and Conflict Management Programs and your local telephone directory for a center in your area.
Step 3 Evaluate Written Materials
Call or write to 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 should cover most of the following topics.
Mediation Training How was the mediator trained? How many hours of training has this mediator had? How recent was the training? Some mediators receive formal classroom-style training. Some participate in apprenticeship or in mentoring programs. While training alone does not guarantee a competent mediator, you should seek a mediator who has had some type of formal 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. 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 session describing the process and orienting the parties as to how the next session(s) will proceed. Following this, the parties decide whether they wish to continue. Is an orientation session offered at no cost, reduced cost, or otherwise?
Cost Understand the mediator's fee structure. Does the mediator charge by the hour or by the day? What is the mediator's fee? Does the mediator charge for preparation time?
Other Considerations Does the mediator or mediation center carry professional liability insurance which 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. 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 and train volunteer mediators? How are the mediators supervised? What types of cases does the center handle?
Step 4 Interview Mediators
Talk to mediators on your list in person or by phone. During the interview, observe the mediator's interpersonal and professional skills. Qualities often found in effective mediators include neutrality, 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 may want to ask the following kinds of questions.
Training, Knowledge, and Experience
- How has your education and experience prepared you to help us work out this specific dispute?
- Do you participate in continuing education, on-going supervision, or consultation?
- Do you think expertise in the subject of this dispute is necessary, 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 notions 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 can 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.
Mediation Style and Logistics
- What values and goals do you emphasize in your practice? For example, does the mediator encourage the 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.
- What mediation model do you use? Does the mediator co-mediate with another mediator? Does the mediator use caucuses to talk with each party separately, and, if so, when?
- 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?
Ethics
Which ethical standards will you follow? All mediators should be able to show or explain their ethical standards (sometimes called a code of conduct) to you. If the mediator is an attorney or other professional, ask what parts of the professional code of ethics will apply to the mediator's services. Ask if there is any prior relationship with any of the parties or their attorneys. The mediator should reveal any prior relationships or personal bias which could affect his or her performance, and any financial interest that may affect the case.
Confidentiality
How do you handle 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 party 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 answer these questions and explain the reasoning behind the answer.
Cost
- How would you estimate costs for this case? You should not expect a mediator to give you an exact cost for mediation as each case varies based on the personalities of the parties and the complexity of the issues. However, a mediator should tell you how they charge for their services. Make sure that the mediator's cost and availability coincide with your resources and time frame.
- Do you charge separately for mediation preparation time, the actual mediation, and drafting the agreement? How can we keep costs down? Ask the mediator if there are documents you can gather, people you can speak with, or "homework" you can do to reduce the amount of time the mediator must spend on your case.
- Do you perform any pro bono (free) services or work on a sliding fee scale?
- Are there any other charges associated with the mediation?
- If more than one mediator attends the session, or if there is a co-mediation, are the parties required to pay for both mediators?
Step 5 Evaluate the Information and Make a Decision
Ask yourself which of the mediators best demonstrated these skills. Did the mediator understand your problem? Did he or she 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 he or she understand what was important to you and understand the scope and intensity of the case? Did he or she 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 the mediator convey respect and neutrality? Did you trust the mediator? Of course, not every orientation interview 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.
Remember that mediation is a cooperative process, and that cooperation begins with the selection of a mediator. The other parties to the mediation must also agree to work with this person. You may want to suggest two or three acceptable mediators so that all parties can agree on at least one.
Conclusion
The increasing use of mediation has outpaced knowledge about how to measure mediator competence. You can choose a qualified mediator by thinking about your expectations, gathering information about mediators, and evaluating that information using this guide.
Mediation Organizations & Resources
Special Thanks to . . .
This guide was adapted from a model written by the Alaska Judicial Council and developed with a grant from the State Justice Institute. The Ohio Commission on Dispute Resolution and Conflict Management and the Supreme Court of Ohio would like to extend a special thanks to the following people:
Willam Cotten and Staff
Alaska Judicial Council
David Tevelin and Staff
State Justice Institute
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