Saturday, June 8, 2013

Wisely Choosing a Mediator: Factors to Consider

Most states do not license or certify mediators.  They do not require a minimum level of training, continuing education, background checks, or character and fitness reviews.  In most states, a person who has lost his or her professional license in one area can nonetheless (and easily) open shop as a mediator.  Most states do not have standards of ethics that apply to all mediators and no grievance procedure allowing a client who believes something has gone terribly wrong in the mediation to report the wrongdoing.  Most states do not have the authority to sanction or otherwise prevent the activities of rogue mediators.

A few states have standards of ethics and some entry barriers to the profession consisting primarily of minimum training requirements.  In Missouri, a person can become a “Rule 17 qualified” mediator with less time spent in training than he or she spent watching TV the same week.  But even these ethics rules and modest training requirements typically only apply to mediators who seek to be listed on mediator rosters in court-connected mediation programs. 

In other words, just about anyone can hang up a shingle advertising his or her ability to conduct private mediations.   For lawyers and clients and other mediation parties, this information should tell you that the “buyer [must] beware.”  You need to take the time to choose your mediator wisely and with care.  Mediators vary greatly in skill, training, experience, and temperament.  Parties choosing a mediator must approach the task on a case-by-case basis, considering the facts, emotions, relationships, and law of the dispute as they may affect the attributes you need in mediator.

A good mediator can enhance the likelihood the parties will reach agreement.  A bad mediator will impede the settlement process and may undermine the parties’ relationship, as well as their confidence in the mediation process as a means for resolving future disputes.  Bad mediators will cost the parties additional time and money. 

Several years ago, I read all (yes, all) the advisory ethics opinions and grievance filings involving mediators issued by the ethics panels in Florida.  It brought home to me that a lot of sloppy mediation occurs that affects the core values of mediation: impartiality of the mediator, confidentiality of mediation communications, and party self-determination.

Factors to Consider in Choosing a Mediator

The Judicial Council of Alaska developed an easily accessed and well-informed guide for choosing a mediator.   It describes (1) the qualifications a mediator needs; (2) what makes a mediator competent; (3) the five steps it recommends in choosing a mediator and (4) additional resources.  

The Mediation Council of Illinois also developed a set of ten interview questions parties can pose to prospective mediators.  The questions ask about the mediator’s training -- both quantity and quality, whether he or she has had  any hands on mentoring, supervision or internship training, whether the mediator continues to “sharpen the saw” by attending continuing education programs and mediation-related conferences, and whether she consults regularly with other, more experienced mediators.  The questions then turn to the mediator’s level of experience:  How many mediations has the mediator done, overall and in the particular area of practice that relates to the dispute?   What percentage of the mediator’s professional life is devoted to mediation?  

It then turns to the mediator’s style or approach, which I discussed here.  Next, the interview considers the honesty, integrity and professionalism of the mediator by asking about any ethics complaints filed against him or her, whether the mediator belongs to mediation-related organizations like the Association for Conflict Resolution, the Association of Attorney-Mediators, or state mediator organizations, and whether the mediator provides pro bono mediation services as a community service.   It asks for roster listings, which reflect some measure of confidence expressed by third-parties in the mediator.  It also asks whether the mediator carries liability insurance for his or her mediation practice.

These two easily accessed tools provide a place to start your investigation.  And good mediators will not hesitate to respond to any question about his or her professional background.  But I recommend an even more thorough analysis.

Personal Qualities of a Good Mediator

My last posting, herecalled Qualities of a Good Mediator and the Lessons New Mediators Learn, surveyed the thoughts of a number of conflict resolution experts about the personal qualities of effective mediators.  

Mediator's Availability and Affordability
Often, the well-respected mediators are booked months in advance.  Accordingly, the parties must determine if they can endure the wait.  If not, a rising star with a more open calendar will be the better choice.

Parties often pursue mediation because it tends to be less costly than litigation.   Parties can choose from no-cost or low-cost community mediation projects.  Or, they may engage private mediators who will charge $100 to $300 per hour.  Some mediators charge $1,500 to $3,000 per day, or charge according to the number of parties, the complexity of the case, or the money demand made in the complaint. They may charge cancellation fees.  They may charge pre-mediation fees related to intake or background phone calls or the review of papers or briefs.   

Mediators should not hesitate to discuss fee issues.  Most ethics codes, whether aspirational or mandatory, require the mediator to disclose all fees and costs in the mediation agreement, a retention letter, or the mediator’s opening statement. Most ethics codes also preclude contingency fees and referral fees because of their potential affect on mediator impartiality.  These codes may also instruct mediators to return any unused fees.

Mediator's Certification or Roster Status

Most courts will not allow mediators to mediate cases pending in the courts without some assurance the mediators meet basic training requirements.  Whether a mediator is certified, qualified, or rostered may offer some assurance that he or she has at least some minimal level of training.  

In Virginia, where I now live, entry level mediators (essentially small claims mediators) must have 20 hours of training, including two hours of ethics training.  They must also take a four-hour course on the Virginia judicial system.  Persons wanting to do more complex court-connected civil mediations need an additional 20 hours of training.  Family dispute mediators must have 32 additional hours of training in family systems, the social, emotional and psychological aspects of custody and visitation issues, an understanding of the grounds for divorce, parenting issues, support issues, property issues, debt and bankruptcy issues, tax issues, and the use of experts in mediation.  They must also take an 8-hour course giving them some expertise in screening for and addressing domestic abuse.  Virginia re-certifies mediators every two years after they show additional experience and training.  The court also requires observations and co-mediations with a certified mentor as part of the training program.  The requirements are summarized here.

In contrast, Missouri Supreme Court Rule 17.04 requires only 16 hours of basic training for mediators.  By comparison, I now have over 3000 hours of training.

When choosing a mediator, you should ask for the mediator’s list of training programs.  Most well-organized mediators keep an updated list of all the training programs they have attended.  You should then attempt to assess the quality of the trainers.   Training quality depends on the hands-on experiences offered the trainees and the quality of the feedback provided by the trainers.  Hal Abramson says:  “Information on the quality of training programs can be difficult to acquire by the newcomer although the information is widely known to dispute resolution professionals.  You should ask around.”  The Association for Conflict Resolution lists approved family mediation training programs by provider and state.  To be listed, the program must provide fifteen training outcomes.

You may also want to evaluate the quality of the mediator’s other professional training as a lawyer, therapist or accountant, for instance.  Does he or she have any specialized degrees.

And finally, does the mediator, in turn, train other mediators?  Is he or she well-recognized in the field for his or her training work?

I'll discuss additional factors in the selection process in my next posting. 

This article originally appeared in the St. Louis Lawyer, April 2005, reprinted in The Insurance Receiver, Summer 2005, at 11 and at (footnotes in original are omitted in this posting). 

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