Selecting a Mediator – Claire-Elaine Arthurs

 

Selecting a Mediator

Selecting the mediator who is best suited to your particular dispute can be critical in ensuring the success of the mediation. However, with so many mediators to choose from, it can be difficult to know who to propose.

There are a number of important points to think about when considering which mediator to appoint:

Recognised Mediation Qualification

Is the mediator specifically trained in mediation by a well regarded provider to an acceptable and recognised industry standard?

There are a surprising number of appointment of individual professionals with no formal mediation qualification or experience made just because they are well known in that sector. Research shows that the quality in such mediations can be variable. While the professional may be an expert in their field, that is no guarantee that they will have the requisite skills to facilitate a successful mediation.

Continuing Professional Development and Track Record

Is there evidence directly or through their memberships/accreditations that the mediator is maintaining practice standard through continuing development and training?

You should consider if the individual has mediated before? How often do they mediate? How recently have they been involved with mediations?

Mediation is a skill that is developed and enhanced with use. It is not enough to simply have a qualification and then dust it off from time to time. Skills need to be honed and practiced in order for a mediator to be effective.

Experience and Background

What background best suits this particular dispute? Will they be able to understand the complexity of the dispute? Would the perspective and insight of someone from a different professional background, such as a Surveyor, accountant or engineer, be helpful?

A mediator needs to be in a position to quickly understand the nature of dispute and the process through which that dispute is being taken. This enables them to efficiently appreciate and process specific points raised by the parties during the mediation process. If the facts and legal basis of the dispute are relatively straight forward this may be less of a concern. However, if the dispute is in a particular specialist area or has a complex fact pattern, it may be beneficial to appoint a mediator with a compatible background.

Style and Personality

Does the style and personality of the mediator fit with the needs of the parties and the nature of the dispute?

Mediators all have their own specific style and personality. Clients may respond better to some styles than others. It is important to consider how the parties, their advisors and any other stakeholders involved in the dispute might respond to a particular mediator.

Recommendations

Is the mediator recommended by an independent source who has appointed them in the past?

What weight should be given to mediators proposed or recommended by the other party’s legal representatives?

In the case where the mediator has been recommended by an opposing legal advisor it can be natural to consider that there may be ulterior motives for their proposed selection. The parties are in dispute after all. However, this is rarely the case. Mediators act in a neutral capacity and only share or impart information on the specific instructions of a party. If they were to show bias, then their career as a mediator would be very short lived.

If a legal representative has proposed a mediator, then that should be because consideration has been given as to whether they are appropriate for the dispute in hand. Whether or not the solicitor has recommended or used them in the past should not be a point of concern. If a mediator is effective, then it is likely that they will be recommended for further appointment.

Practicalities

There will only be limited days on which the parties and their representatives will all be available. Will the mediator be available on any of those dates?

What does the mediator charge? Prices can vary significantly, and the price charged does not necessarily reflect the quality of the mediator.

Is the mediator able to travel to a convenient location for the parties? Does the mediator need to be able to provide a neutral location for the mediation?

What if the parties cannot agree on a mediator?

Sometimes the parties are so entrenched that agreement on which mediator to appoint is not possible. There are a number of professional bodies who can act neutrally to appoint a mediator on behalf of the parties. The drawback of these schemes is that the parties may not be able to tailor the fit of their mediator for their dispute in the same way they could if they were making the selection themselves.

If you are referring the matter to a thirdparty institution for appointment then you should be clear in your specification for the mediator appointment, taking into account the points raised above. The clearer you can be about the type of mediator you are looking for, the better the match will be. You may also want to consider asking for a range of 3 names to be neutrally proposed, as that still allows the parties some discretion to tailor their choice.

About the author: Claire-Elaine Arthurs is a Property Litigation Solicitor, a CEDR Accredited Mediator and Chartered Manager with extensive experience of mediation.  She is a Partner at Gunnercooke LLP where she manages a team dealing with the resolution of a wide range of property issues.