A dispute is looming on the horizon. It may be with your business partner, a landlord, a contractor, a neighbor, your housing association (HOA), an automobile service center, an insurance company, your siblings regarding needed elder care, co-owners of a family business, the trustees of your faith community, your spouse or life partner…
You are dreading the discussion or argument and the amount of time that probably won’t yield a resolution. You don’t feel the other party ever listens to you. If you don’t get issues resolved the conflict will linger and cast a shadow over so much. Sometimes litigation is a possible recourse but thinking about expensive attorney’s fees, court hearings, and asking a judge to decide all seems complicated and risky. What happens if the judge does not rule in your favor? You have heard of mediation but what does that mean? Heck, you can’t discuss the matter with the other person now, why would a mediator make a difference?
Mediation is a confidential process whereby a third-party neutral helps you and the other person(s) discuss the dispute. Though mediator neutrality is key, there is also the principle of “omni-partiality” whereby the mediator is on the side of all the parties and the mediator encourages each of the parties to consider the other party’s view, new information, or a creative to go forward. A hallmark of mediation is that the mediator doesn’t make decisions about the path forward, the parties do.
Ideally for agreement to be approached, each party should have an opportunity to explain their perspective as well as hear and understand the other party’s point of view. The exchange of information and reasoning is crucial so an agreement can reflect each party’s interests. Once information and perspectives are shared, the next step is to figure out how to go forward. Typically, going forward is defined by some type of plan or agreement. Or, going forward could be a decision to move to arbitration where a neutral evaluator assesses the circumstances and facts and makes a decision. Or, going forward may mean litigation. Notably, a value of mediation is that as a result of the discussion, the “sides” better understand each other and are more informed to make decisions or plan the next step toward resolution.
There are many books that explain mediation in detail and often they focus on a particular topic. For example, there is mediation material focusing on conflict associated with estate matters, construction claims, divorce, sharing the family cottage, co-parenting for non-married couples, non-profits, church boards, schools, business organizations, family businesses, and more. Once you and the other party determine you would like to proceed with mediation, one of the first steps is to choose the mediator. A useful opportunity to assist with the selection is the “free consultation” that most mediators offer. What is that all about? Is it necessary? How do you make the most of the free consultation?
To find mediators, google “mediators near me” or you can go to websites that list mediators and their specialties. Two sources to try: https://www.mediate.com/ , https://www.nhcra.org/find-a-practitioner/practitioners-by-type.html
Once you get your list of mediator names together, check each mediator’s website to see if they offer a “free consultation” and arrange an appointment. Next, think about what you want to learn during the free consult? It is an opportunity to explore both facts and qualities of the mediator. Some key facts can be determined with basic questions:
- How long have you mediated?
- Where did you get your mediation education?
- Are you certified by any particular agency?
- What kind of circumstances have you mediated?
- What is the process you follow?
- Has the mediator had experience with mediating circumstances similar to yours?
Exploring for qualities, which are less tangible, isn’t as straight forward. Here is a collection of attributes that describe important qualitative characteristics you should look for in a mediator:
From among these characteristics, choose a couple that are most important to you and probe for them during the free consultation. Below each of these qualities is described and an example of how you might probe for it is provided.
Good Listener: When conversing with the candidate mediator do they acknowledge and reflect what you told them?
For example, you might say, “My building contractor has made promises upon promises and hasn’t delivered on any them. He is undependable; my roof leaks and the gutters are misaligned and the windows are improperly installed.”
A good listener will acknowledge what you shared by summarizing for example, “So you are interested in addressing the poor workmanship and getting the contractor to delivery what they promised?” A good listener might also ask you to say more about the circumstances.
If the mediator doesn’t acknowledge or comment on what you share, test again. You are looking for evidence that you have been heard.
Chemistry: This is intangible. You need to define it for yourself and sense for it. A couple of good indicators are: Is the mediator is easy to talk with? Does the conversation feel natural, not forced or awkward? You sense a connection, the building of trust, and bi-directional openness.
Clarity: Do you understand what the mediator is saying? Are they articulate? Are their thoughts and explanations easy to follow? A good idea, too, is to ask for the mediator’s Agreement to Mediate and Fee Agreement. Is it clear, logical, and to the point?
Creative: This may be difficult to assess in a “free consultation.” A possible question to ask is “Do you have any techniques to help parties think ‘out of the box’?
Empathy: Empathy is the ability to understand and share the feelings of another.
For example, if someone comments that the situation has caused stress and heartache, an empathetic person acknowledges those feelings with words like “That must be a difficult situation. How have you been managing through it?”
Forward Focused: Once parties’ stories and interests have been shared and explored the mediation should move toward what to do in the future, toward resolution. A possible way to sense this quality is to listen how the mediator candidate closes the call. Do they clearly outline next steps and expectations, perhaps even giving a date to re-connect? You are looking for a concrete next step that should occur after the “free consultation.”
Objective: In the “free consultation” was the candidate mediator free of bias and judgment?
Organized: Related to clarity but there is more focus on the sequence of the discussion and/or process explanation. You sense that the conversation flows in a logical order and digressions are minimal.
Professional: In oral and written exchanges, does the candidate mediator reflect high standards, reliability, and accountable? Are they punctual and have commitments been kept?
Thorough and Detailed Oriented: Was the mediation process explained with enough details that you are clear in what to expect? Were all your questions answered? This quality is important to discern because you will want mediated agreements to cover all aspects of the dispute so the resolution is complete and you don’t have subsequent feelings of “I should have included of that!” or the agreement so vague it leaves too much room for interpretation.
Timely and Responsiveness: It may be difficult to discern this in “free consultation” but try. You are exploring for the mediator’s availability and accessibility. How long did you have to wait for the free consultation? If you called back with additional questions, was the mediator easy to get a hold of? Question how long does the mediator takes to write a mediated agreement or document after the mediation is completed.
Trustworthy: Can you count on the candidate mediator to keep confidences, to share information with the other party only with prior permission, to recommend consulting an expert if a complicated legal or financial circumstance exists, to work in a good faith effort to explore the dispute and facilitate a constructive conversation? Exploring for this quality is a challenge. Sensing that the candidate mediator is open, candid, and comes across authentically with simple, confident answers may be a good indicator.
Competent: This is a conclusion you make after the free consultation with candidate mediator is ended. Considering both the answers to the fact questions and the sense you gained of the qualitative factors do you feel the candidate mediator has the necessary ability, knowledge, and skill to mediate effectively and you would feel comfortable and confident working with them?
Having both confidence and comfort in the mediator you choose is critical. You are asking this person to guide you through what could be tough, complicated, and perhaps heated discussions. You should proceed with the mediation with your focus on the subject matter of the dispute knowing that you chose a qualified professional with complimenting qualities.