You’re right. There are plenty of people around the place that do mediation. Choosing a mediator is a process that should be more involved than closing one’s eyes and throwing darts in the direction of a list of names. And yet, so often that is the type of approach taken (sometimes without the darts!).

Choosing a mediator is not a case of picking someone that both parties like! Or choosing a greatly admired mediator, or someone with a lot of experience, or the most expensive mediator. It is a process, and needs careful thought and consideration…. You should choose a mediator on the basis of who has the required skills to being about the best chance of a successful resolution of the dispute.

Different people suggest differing approaches to choosing a mediator. I’m not a huge fan of any of the ones that I’ve read lately.... so I decided to write my own “how to choose a mediator” guide.... Here it is.

The first step to look at the type of dispute. Self evidently, Family law disputes need to be managed a little differently to disputes in the workplace, and disputes between commercial entities over a contract are different too. They have different considerations.  But so many people don't consider the type of dispute and the impact that has on the appropriateness of the mediator....If it is a family law parenting dispute, for example, you might need to consider whether the mediator is a registered FDRP (Fiona is), or whether they are willing to consider doing Child Inclusive mediation (we will, provided the matter is suitable for it!). If it is an employment matter, there needs to be consideration of the nature of the employer, the relative ‘levels’ of the staff involved, and the nature of their involvement on a day to day basis within the organisation. The type of mediation that is suitable might depend on whether the parties have to preserve their working relationship – which may dictate that a evaluative approach is unhelpful, but a transformative approach is beneficial (see our discussion of the approaches to mediation below). But in a commercial dispute between contracting parties that will likely never have another dealing with each other, evaluative approaches may well be ideal.

The next issue is nature of the parties in dispute (and their lawyers!). It is perhaps unpopular, but considerations of the personality of the parties in the dispute (for example, are either of them confident and “take charge” type people?), and where along the conflict continuum the parties are.
Age and experience and “seniority” within the organisation or profession are all factors that should be considered. If the parties in dispute are older senior leaders in your organisation, having a young and inexperienced mediator is a recipe for disaster! Similarly, if you have one party to the dispute that is a confident “take charge” personality and one that is quieter it is critical to have a mediator that can encourage the quieter of the two to actively participate and control the process such that the confident party is unable to dominate.  In some cases, consideration of gender balance within the process can be an important consideration (particularly if the parties are represented by legal advisers). It is also critical that the mediator you choose is truly independent – preferably not known to the parties where possible and certainly if known without a relationship with either party, and ideally without connections or allegiances to people connected to the parties.

Next comes the context of the dispute. If the dispute is occurring within the context of a faith based organisation, there is often benefit from the involvement of a mediator with a similar faith. If the parties have commenced or are about to commence court, then evaluative mediation approaches are likely to be helpful - but not necessarily when the parties need to maintain an ongoing working relationship, in which case a mediator comfortable with a transformative approach would be more ideal.

Once you have some thoughts about the type of dispute, the nature of the parties and context, and what you want to achieve, start looking for mediators. It’s ok to ask for the mediator to provide their brief CV setting out their training and experience! You should know, before you engage a mediator, what approaches they tend to use and check that fits the type of dispute and context.

Other considerations?  Well, yes. You need to consider what comes after the mediation. One of the important issues is confidentiality. Generally, mediation is confidential and what is said at mediation stays there, with limited exceptions around safety etc. However, if an employer is paying for mediation between two employees, it might be that the employer wants the mediator to provide feedback to the employer (for example, around the issues identified, what agreement was reached (if any), whether there were roadblocks that could be assisted by the organisation, and recommendations). Or, there might be questions around who drafts the agreement if one is reached, or what happens if the parties need to engage over a longer period of time. These things should be agreed in advance.

I have seen situations where another staff member, or a trusted friend has been appointed to “mediate” between other employees or workers in the organisation. This has often been in faith based organisations who take the Matthew 18 approach to conflict resolution seriously. But this approach often has significant flaws. They might be a lovely person, highly respected by both parties, and caring deeply for both. But the most suitable mediator is an independent, usually highly trained individual, who is able to make appropriate assessments at the beginning of the mediation and structure a process to meet the needs of the participants in what can be a complex power dynamic between two individuals that are hurting. A mediator must be independent, with no vested interest in the outcome. The lovely person known to both parties rarely meets these criteria.

The key here is simple: for mediation to have the greatest chance of being effective, the mediator must be independent and skilled and appropriately matched to the needs of the parties involved. Mediation is a great tool – but like all tools, it is important to choose the right instrument for the right job – choosing a mediator is no exception!

I could equally call this post “why someone you both like is not necessarily a mediator”.....  Sometimes I think it is important to define what exactly we are talking about when we talk about someone acting as a mediator.

Technically, the dictionary definition of a mediator is someone who mediates between two parties in dispute. This is, perhaps, an unhelpful definition. What we usually mean is that a mediator is a third party to a dispute that seeks to structure a process to allow the parties to bring about a peaceful end to a dispute between them. They are usually not a decision maker (although in some forms of alternative dispute resolution, there is a blend of decision maker roles at times, particularly if the parties can’t resolve their issue).

In Australia, professional mediators generally have either tertiary qualifications in law or social science and have practiced extensively in their chosen field before undertaking more study in mediation.

The role of a mediator in this sense is (or at least should be) multifaceted. It includes:

1. Understanding the nature of conflict;
2. Taking the time to meet with or at least speak to both parties separately to assess whether it is appropriate to mediate the matter, and gather information in preparation for the mediation to inform the way in which the mediator approaches the mediation;
3. Coaching both parties, ahead of the start of the process, about the nature of conflict, how a mediation works, and how to prepare for mediation;
4. Appropriately structuring the mediation to ensure that there is a “level playing field” between the parties during the mediation; and
5. Ensuring that the process adopted throughout the mediation maintains the even playing field, and allows the parties to work through the process of identifying the issues, assessing options to resolve the issues, and negotiating an agreement to resolve the dispute.

Sometimes, the mediator will help the parties to draft a “Heads of Agreement” type document at the conclusion. Depending on the agreement, it may be that the parties have agreed to, or expect a brief report to be completed as well at the conclusion – this is more likely in employment situations where the employer seeks a brief report or account of the outcome of the mediation, or in situations where the mediation is being provided by a government department like Legal Aid.  Both of these are optional depending on the process.

There are differing approaches or styles of mediation including:

• Facilitative mediation (where a mediator attempts to facilitate the parties in conflict negotiating a resolution to the dispute – in pure facilitative mediation approaches, the mediator doesn’t tend to give a view about the conflict);

 

• Evaluative Mediation (this is a type of mediation often used in legal disputes, and mediators are usually more inclined to make recommendations, suggestions or express views – usually this involves assisting parties to assess the legal merits of the arguments and it is often referred to as “bargaining in the shadow of the law”; and

 

• Transformative mediation (where the focus is on empowering the parties to resolve their conflict and meet each other’s needs and interests – in effect, the process aims to transform the parties and their relationship to resolve the conflict and avoid future conflicts).

Whilst there may be different approaches within these categories (for example, narrative mediation is arguably a form of transformative mediation but it isn't the only approach in this space), these are the three main approaches.

Mediators are trained in one form usually (and more often than not in Australia, that is the facilitative model), however it is my view that mediators ought to adjust their approach and borrow from the most suitable approaches for the particular conflict situation at hand – although trained in pure facilitative models of mediation, I’ve studied both transformative approaches to conflict, and have personally experienced hundreds of evaluative mediations as a legal representative, and done many as a mediator in a family law context. My observation is simple - utilising a purely evaluative mediation approach, for example, is rarely going to help co-workers who have to have an ongoing working relationship with each other – it’s too focused on the legal aspects without resolving underlying issues which may continue to cause conflict. Similarly, some personality driven disputes need the nuance of transformative mediation approaches to get around past difficulties – pure facilitative mediation approaches might not be so helpful.

Mediation should never be “one size fits all”, and good mediation is undertaken by highly trained, skilled and experienced practitioners with the understanding that they are being entrusted to help people that are probably already hurting – and it is important not to add to that burden of hurt.