Help! I googled “mediator” and there are hundreds of them.... how do I choose a mediator?

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!