- How to Choose a Mediator
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- Becoming a Mediator
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- Community Mediation
|Mediation is a conflict resolution process in which one or more impartial persons intervene in a conflict with the disputants' consent and help them negotiate a mutually acceptable agreement. The mediator does not take sides or decide how the dispute should be resolved.|
A consumer needs at least a basic understanding of mediation to profit fully from this Guide. To learn more about mediation, consult books, articles and pamphlets at your local library, community mediation center, courthouse, bookstore, or mediator's office. The information contained here is necessarily brief, but does give an overview of the essential points which should be kept in mind when choosing and working with a mediator.
Mediation is a consensual process in which an impartial third person assists two or more parties to reach a voluntary agreement which resolves a dispute or provides options for the future. The mediator helps the parties identify their individual needs and interests, clarify their differences, and find common ground. A few points to keep in mind:
Mediation is not litigation. Litigation is the formal legal process in which parties use the court process to resolve their disputes. The judge or jury determine the outcome of this process, unless a negotiated settlement is reached first.
Mediation is not arbitration. Arbitration is a form of private adjudication, where parties present evidence and argument to an impartial third person (the arbitrator). The arbitrator then reviews the evidence and renders a decision which may be imposed on the parties. The arbitrator determines the outcome, much as a judge determines the outcome of a trial.
Mediation is not counseling or therapy. Although the process is often therapeutic for the parties, the primary goal of mediation is to reach an agreement, not to resolve the feelings associated with the dispute.
Different mediators describe the process differently. However, there are several common stages that the parties move through with the assistance of the mediator.
There is no universal answer to this question. No particular type or amount of education or job experience has
been shown to predict success as a mediator. Successful mediators come from many different backgrounds.
Competence depends partly on the context of the dispute and the parties' expectations. It also depends on whether the mediator has the right mix of acquired skills, training, education, experience and natural abilities to help resolve the specific dispute. Important skills and abilities include neutrality, ability to communicate, ability to listen and understand, and ability to define and clarify issues.
Qualifications refer to the amount and type of training, education and experience possessed by a mediator. There is currently no clear consensus on what qualifications mediators need in order to perform competently in the many and varied contexts in which mediation is practiced or how to assess and evaluate competence in mediators. In light of this uncertainty, many mediators are concerned that efforts to define the process for licensing, certifying or otherwise limiting the practice of mediation to certain individuals are at least premature and could inappropriately limit access to, and diversity within, the practice. Others believe that some process for monitoring mediation practitioners is required to protect consumers and fear that if mediators themselves do not define and implement such processes, others less knowledgeable about the best practices in the field will do so.
The most recent report of the Society of Professionals in Dispute Resolution (SPIDR) Commission of Qualifications (April 1995) reiterates the conclusion of its 1989 report that "no particular degree is necessarily a prerequisite for competence as a neutral and the use of a degree as a main criteria for credentialing dispute resolution professionals deprives the parties of access to practitioners with different ranges of skills and works against increasing diversity within the field." Oregon law states that "formal education in any particular field shall not be a prerequisite to serving as a mediator." (ORS 36.185)
In Oregon, as in most states, a person can offer private mediation services without taking a class, passing a test or having a special license or certification. In reality, many private mediators, and most of those who work for or are associated with mediation organizations and programs, have some training and experience.
Certification recognizes that a person has completed a specific level of education or training. In some cases, it may indicate that a person has achieved a certain level of skill in performing certain functions. Public, private, professional or educational bodies can certify. Licensing requires a public body to certify an individual's abilities and is official permission to practice a profession or use certain titles.
Currently in Oregon, as in most states, there is no process for a person to become certified or licensed to provide mediation services. Work on mediator qualifications in Oregon is currently focused on the need to define "best practice" and identify methods for assessing the skills associated with being a competent mediator, rather than on certification or licensure.
Mediators in programs that receive state funds to provide dispute resolution services in Oregon must meet the minimum qualification and training requirements established by the Oregon Dispute Resolution Commission and set out in Oregon Administrative Rules (OAR Chapter 718). Individual programs often have additional requirements for training and practice under the supervision of an experienced mediator.
Some national and local mediation membership organizations set training and experience requirements and ethical standards for their practicing members. Mediation referral services may impose training, experience or other requirements on mediators who wish to be included on their rosters.
Because no easy formula can predict mediator competence, the consumer must do some groundwork before selecting a mediator. First, you must understand the mediation process. After you understand the basics, you can use the following process to choose a mediator:
|Five Steps to Choosing a Mediator
1. Decide what you want from mediation
2. Get a list of mediators
3. Look over mediator's written qualifications
4. Interview mediators
5. Evaluate information and make decision
These steps are described on the following pages. Remember during your search that a mediator should remain neutral and treat both parties with equal fairness and respect.
Think about your goals for the session. Do you want a mediator who suggests options in order to help move the
parties towards agreement? Or, do you want a mediator who resists offering opinions so the parties feel responsible
for their agreement? Think about past attempts at negotiation and problems with those attempts. What are your choices
if mediation does not work?
Think about your abilities. What are your strengths and weaknesses as a negotiator? What are the other party's strengths and weaknesses? What are your emotional limitations? Do you expect the mediator to help you stand your ground if the other person negotiates better than you or has more "power?" Thinking about these issues is especially important if there is a power imbalance between you and the other party. If there has been abuse and or violence between you and the other party, please read the Domestic Abuse section.
Think about the dispute and the context in which you must resolve it. What is the time frame? Is this a commercial dispute between experienced insurance company representatives, or is it a divorce involving an emotional child custody decision? The approach or model that commercial disputants might prefer may differ greatly from the one preferred by a mother and father.
Consider your budget. How much you can spend might limit your choice of mediator or mediation program.
Many mediators and dispute resolution firms or services can help you understand what services would be best for your dispute. Some will contact the other party to the dispute to introduce the concept of mediation.
You can get a list of mediators from several sources.
Word of Mouth. Ask a friend, your attorney, your therapist, or another professional. Describe your case to a mediator and ask, "Other than yourself, who are the most skilled mediators in this kind of case?" Talk to people who have been in a mediation with the mediator (you can ask the mediator for names of clients). What was their case about and what were their impressions of the mediator?
Written Lists. Check local listings in the Yellow Pages. OMA also maintain directories of member-mediators.
Referral Services. Many national mediator membership organizations and trade organizations keep lists of practitioner members and offer referral services (some of these organizations are listed on the Links page). Some may charge for the referral services.
Community Mediation Centers. Neighborhood mediation or dispute resolution centers offer services in many Oregon counties. Volunteer mediators receive training and supervision before handling cases independently. Most programs do not charge the public for their services. The Oregon Dispute Resolution Commission maintains a list of all such community mediation programs. Click Here to go to that list.
1. Ask people and professionals whom you know
2. Look at directories like OMA's Mediator Directory
3. Call referral services (ask whether they charge to refer you to a mediator)
Call or write several mediators on your list and ask them to send you their promotional materials, resume, references
and a sample of their written work. These materials should cover most of the following topics.
Mediation Training. How was the mediator trained? Some mediators receive formal classroom-style training. Some participate in apprenticeships or in mentoring programs. While training alone does not guarantee a competent mediator, most professional mediators have had some type of formal training. Was the training geared towards this type of dispute? How many hours of training has this mediator had? How recent was the training?
Experience. Evaluate the mediator's type and amount of experience (number of years of mediation, number of mediations conducted, types of mediations conducted). How many cases similar to yours has the mediator handled? A mediator's experience is particularly important if he or she has limited formal training.
Written Work. Some mediators will write up notes about agreements or even draft agreements for the parties. Other mediators do not prepare written agreements or contracts. If your mediator will prepare written work, you may want to review a sample. Samples could include letters, articles or promotional materials. Any sample of the mediator's written work should be clear, well organized, and use neutral language. Agreements or contracts should have detailed information about all items upon which the parties have agreed.
Orientation Session. Some mediators offer an introductory or orientation session after which the parties decide whether they wish to continue. Is it offered at no cost, reduced cost, or otherwise?
Cost. Understand the provider's fee structure. Does the mediator charge by the hour or the day? How much per hour/day? What about other expenses?
Other Considerations. Find out whether the mediator carries professional liability insurance which specifically covers mediation. Does the mediator belong to a national or local mediation organization, and is the mediator a practicing or general member? Some competent mediators may choose, for reasons of cost or otherwise, not to join professional organizations or carry liability insurance. If this is a concern, ask the mediator about it.
If you are using mediators from a community mediation center, you may want information about the center. How long has it been operating? How does the center select volunteer mediators? How does it train the mediators? How are the mediators supervised? What types of cases does the center handle?
|Evaluate Written Materials
1. Fees: Hourly? Daily? How much?
2. Education: How much? What? How recent?
3. Experience: What kinds of disputes? How many mediations? Areas of specializations?
4. Written (if available): Understandable? Complete? Concise?
5. Insurance: Coverage? What kind?
6. Professional memberships? Adherence to ethical standards?
Talk to the mediators in person or by phone. During the interview, observe the mediator's interpersonal and
professional skills. Qualities often found in effective mediators include neutrality, emotional stability and maturity,
integrity, and sensitivity. Look also for good interviewing skills, verbal and nonverbal communication, ability
to listen, ability to define and clarify issues, problem-solving ability, and organization.
During the conversation, you also may want to ask questions about matters covered in the written materials and other topics. Some topics to discuss in the interview include:
Training, Knowledge and Experience. Ask the mediator, "How has your education and experience prepared
you to help us work out this specific dispute?" If the mediator had formal training, did it include role play
and observations of skilled mediators? While training and education do not guarantee competence, training is most
effective when it includes practice-oriented segments such as role play and observation.
Ask "Do you participate in continuing education, on-going supervision, or consultation?" Many professional mediation organizations encourage or require their members to participate in ongoing education or other professional development.
People often ask whether a mediator should be an expert in the subject of the dispute. For example, should the mediator in a commercial mediation be an expert on industry standards and practices? The answer depends on the type of dispute, the mediation program (for example, court-referred or administrative agency), and the parties' expectations and needs. Ask the mediator if he or she thinks subject-matter expertise is necessary for this dispute, and why or why not.
In some cases, the parties may prefer a mediator with no special knowledge of the subject. Benefits of this approach include avoiding a mediator's preconceived notions of what a settlement should look like and letting the parties come up with unique or creative alternatives.
In other cases, for example where the subject of the dispute is highly technical or complex, a mediator who comes to the table with some substantive knowledge could help the parties focus on the key issues in the dispute. Or, parties may want someone who understands a cultural issue or other context of the dispute.
Style. Ask "What values and goals do you emphasize in your practice?" For example, does the mediator encourage the parties to communicate directly with each other, or does he or she control the interchanges? The mediator should be able to describe his or her style of mediation and his or her role in the mediation process. Different mediators may practice their craft in different ways, and some mediators can change their style to suit the parties' specific needs.
Another stylistic difference is the use of caucus. A caucus is a meeting between one of the parties and the mediator without the other party present. Some mediators caucus frequently during the mediation, while others seldom or never use this procedure. Ask the mediator whether he or she uses caucuses, and if so, when.
If the mediator works for or is associated with a mediation program or organization, ask what values and goals the program emphasizes. For example, the style or requirements of a mediator who practices in a court program designed to reduce court caseloads may differ from the style of someone whose practice does not involve the same time pressure.
Ethics. Ask "Which ethical standards will you follow?" (You may ask for a copy of the standards). All mediators should be able to show or explain their ethical standards (sometimes called a code of conduct) to you. If the mediator is a lawyer or other professional, ask what parts of the professional code of ethics will apply to the mediator's services. Ask the mediator, "Do you have a prior relationship with any of the parties or their attorneys?" The mediator should reveal any prior relationship or personal bias which would affect his or her performance, and any financial interest that may affect the case. Finally, ask the mediator whether any professional organization has taken disciplinary action against him or her.
|Standards of Conduct (Ethics). Standards of conduct do not regulate who may practice, but rather create a general framework for the practice of mediation. National mediator organizations have adopted voluntary standards of conduct. Click Here to see OMA's Standards of Mediation Practice.|
Confidentiality. The mediator should explain the degree of confidentiality of the process. The mediator
may have a written confidentiality agreement for you and the other party to read and sign. If the mediation has
been ordered by the court, ask the mediator whether he or she will report back to the court at the conclusion of
the mediation. How much will the mediator say about what happened during mediation? How much of what you say will
the mediator report to the other parties? Does the confidentiality agreement affect what the parties can reveal
about what was said? If the parties' attorneys are not present during the mediation, will the mediator report back
to them, and if so, what will the mediator say? The mediator should be able to explain these things to you.
Logistics. Who will arrange meeting times and locations, prepare agendas, etc.? Will the mediator prepare a written agreement or memorandum if the parties reach a resolution? What role do the parties' lawyers or therapists play in the mediation? Does the mediator work in teams or alone?
Cost. Ask "How would you estimate costs for this case?; How can we keep costs down?" Are there any other charges associated with the mediation? Does the mediator perform any pro bono (free) services or work on a sliding fee scale? If more than one mediator attends the session, must the parties pay for both? Does the mediator charge separately for mediation preparation time and the actual mediation?
Special Considerations if There has Been Domestic Abuse Between You and the Other Party.
If there has been domestic abuse or violence between you and the other party, you should understand how it can
affect the safety and fairness of the mediation process. Talk to your lawyer, a domestic violence counselor, women's'
advocate, or other professional who works with victims of domestic abuse before making the decision to mediate.
All family mediators should be knowledgeable and skilled in the screening and referral of cases involving abusive relationships. They should be able to explain the potential risks and benefits of mediation when control, abuse, and violence issues exist. Any mediator who handles such cases should have special training in domestic violence issues and should offer special techniques and procedures to minimize risk and maximize safety of all participants.
If you decide to try mediation, it is important to let the mediator know about the abuse or violence. Some ways you can tell the mediator include asking your lawyer to tell the mediator, or telling the mediator yourself. You can tell the mediator yourself in the initial telephone call, or when filling out any written questionnaires. If there is an active restraining order, make sure the mediator knows about it.
Ask what domestic violence training the mediator has had and if the mediator has worked with similar cases. Ask whether or not the mediator believes your case is suitable for mediation and why. Ask how the mediation process can be modified to make it safer and more fair. Can the mediation be done by telephone or in separate sessions ("shuttle mediation")? Can a support person (domestic violence advocate or your attorney) be present during the mediation? If your case is not suitable for mediation, what are your alternatives? Ask for referrals to other resources, such as a local domestic violence counselor.
|Talk to the Mediator
1. What ethical standards apply?
3. What approach to mediation?
4. More about training and experience?
5. Logistics (meetings ,written agreements)?
6. How much will this cost?
7. Domestic abuse concerns?
During the interviews, you probably observed the mediators' skills and abilities at several important tasks. These tasks, which mediators perform in almost all mediations, include:
Ask yourself which of the mediators best demonstrated these skills. Did the mediator understand your problem?
Understand your questions and answer them clearly? If the other party was present, did the mediator constructively
manage any expressions of anger or tension? Did the mediator convey respect and neutrality? Did you trust the mediator?
Did the mediator refer you to other helpful sources of information? Understand what was important to you? Pick
up on an aspect of the conflict that you were not completely aware of yourself? Did the mediator ask questions
to find out whether mediation is preferable or appropriate? Understand the scope and intensity of the case? Of
course, not every orientation interview permits the mediator to demonstrate all these skills, and every mediator
has relative strengths and weaknesses. But you should be satisfied that the mediator can perform these tasks for
you before beginning.
Review the other questions on this checklist. Make sure that the mediator's cost and availability coincide with your resources and timeframe. The other parties to the mediation must agree to work with this person, too. You may want to suggest two or three acceptable mediators so that all parties can agree on at least one.
Finally, consider evaluations of others who have used this mediator or your own previous experience with this mediator. If applicable, consider the goals and procedures of any organization with which the mediator is associated.
1. Check the mediator's skills and abilities against the tasks listed above and your own expectations.
2. Was the mediator respectful and neutral to all parties?
3. Can you afford the services?
4. Can the mediator work within your time frame?
5. Will the other parties agree to work with the mediator?
The increasing use of mediation has outpaced knowledge about how to measure mediator competence. You can choose a qualified mediator by thinking about what you expect, gathering information about mediators, and evaluating that information using the information in this Guide.
Click Here to go to a Quick Reference Checklist you can print.
(Not yet available - Under Construction)
Many mediation organizations exist. Some of the more prominent have been listed on our Links page.
You can also serach for a mediator through OMA's Mediator Directories.
Copyright © 2000-2002 Oregon Mediation Association
Revised -- March 2002