Have you ever wondered if a different mediator would have been more effective? Wouldn’t you love to have a crystal ball to foresee how the mediation will play out on the day?
While that crystal ball doesn’t exist, choosing a mediator that the parties trust, and can develop a rapport with, is one of the greatest predictors of the mediator’s effectiveness. So, what are some of the key factors that should be taken into account when choosing a mediator for your matter?
Personality and approach. It is important that, as far as is possible, the mediator’s personality and style is matched to that of the parties – without this, the mediator is less likely to gain the trust and confidence of the parties and be able to effectively shift any positional stance adopted. A few questions to ask yourself; will a party respond better to a mediator of particular status, gender, age or cultural background? Does the matter need a mediator with an empathetic or authoritarian approach?
If you’re not sure of the approach of a mediator nominated by the other side, ask colleagues for feedback, check out the mediator’s website and social media presence; or just call them and ask.
Experience and background: In Australia, the starting point should be to ensure that the mediator is nationally accredited (you can do that here), this ensures that they have met the minimum required standards and are maintaining their professional development requirements. But let’s take that as a given – what else is relevant and why? Again, it’s about developing a rapport between the parties.
You should consider whether the dispute requires someone with a legal qualification to enable them to adequately reality test a position adopted by a party and/or gain the trust and confidence of the parties and their lawyers. Many commercial and litigated claims are mediated by people with legal experience; whether an ex-judge, barrister or solicitor. However, in a family or neighbourhood dispute, that may not be as relevant.
Also, some mediators are now developing, intentionally or otherwise, niche practices – for example, common law claims, building disputes, personal injury claims, family disputes. Consider whether the parties are more likely to engage with the mediator if they have a specialised expertise.
Can they manage the process of mediating? The role of the mediator is to facilitate discussions between the parties. To enable those discussions to flow, and reduce the chance of hitting a roadblock, the more effective mediator will manage the personalities of the parties and their lawyers. Those mediators then have authority to flexibly adapt the mediation structure to the respond to the dynamics of the personalities involved.
As a lawyer, particularly if you practice exclusively for either plaintiffs or defendants, this characteristic is more difficult to assess, as you often only see what goes on in “your room”.
So, ask your colleagues for suggestions or feedback, consider whether a mediator is recommended equally by plaintiffs and defendants. Think about how the mediator conducted themselves in any “prior professional life” – were they always adversarial and positional or adaptable and flexible?
Preparation and tenacity. Mediations can take time. There often seems to be a lot of waiting around – and that is certainly the case for the individual party. But for the mediator, they are on the go the whole time (or at least they should be), establishing rapport with the parties, taking the time to understand each parties concerns (legal or otherwise), and working together with the lawyers to facilitate discussions and a potential resolution.
When practising as a lawyer, I was particularly impressed with the mediators that got involved – who had plans and strategies to get people talking, yet could press and probe with comments and questions that highlighted a parties strengths and weaknesses. In mediator speak – they were both facilitative and evaluative.
So, it goes without saying that you should look for a mediator that is well prepared, someone who always reads the mediation bundle, suggests pre-mediation conferences, arrives early, spends time with the parties and is prepared to stay as long as it takes.
Finally, look for a mediator that has the administrative skills to make your job easier. Mediators are service providers. Look for a mediator that makes it easy for you to work with them – are they responsive to enquiries? is it easy to find out their available dates and rates? Do they reach out to remind you when the bundle and position papers are due?
How have they adapted to mediating post Covid? will they take charge of organising a mediation via a video conferencing platform, do you feel that they are comfortable mediating on that platform, can they assist with tech issues if necessary? What about signing the mediation agreement when all parties are remote? I have previously written about how to mediate in light of the pandemic, and how the skill set of mediator’s has expanded.
Just as no lawyer can guarantee the final judgment in a case, no mediator can guarantee that a matter will settle at the conclusion of a mediation. But, choosing a mediator that the parties trust, and can develop a rapport with, is too important to simply leave to chance. If you would like to discuss the skills and approach I bring to a mediation, please contact me on 0421 048 456 or by email – email@example.com.