How to Choose the Right Mediator for You

Save Disappointment and Money with the Right Type of Mediator

Choosing the right mediator can significantly impact the outcome of your mediation process. The best mediator isn't always the one with the most legal knowledge or litigation experience. Instead, the most effective mediator possesses strong conflict resolution skills. Here’s what truly matters:

Know What Kind of Mediation Style You Want

When it comes to mediation, one size definitely does not fit all. Selecting the right style can make or break the process. Understanding your goals is crucial in finding the type of mediator you need. Are you looking for a settlement, a win-win solution, or simply a way to improve communication? Knowing your objectives will guide your choice.

Facilitative Mediation

Facilitative mediation is the most widely used approach. In this style, the mediator acts as a neutral guide, helping parties communicate effectively. They do not offer opinions or evaluate the merits of either side's position. Not only do they act like a traffic cop in facilitating the flow of conversation, but they also ask questions to help the parties find out where the participants agree, translate the words and intentions of the parties to improve mutual understanding, and determine if there is a potential for settlement.

This method works best when both sides are willing to engage in good-faith dialogue and is ideal when participants need a creative solution or have issues that a judge or arbitrator does not have as a remedy. For example, if the problem is not a legal issue but a relationship or customer service issue, a court cannot grant relief for that plaintiff. Similarly, a court may have a solution that may mean both parties lose, but facilitative mediation can find a win-win solution, such as a roommate dispute where both parties would not need to move out if the participants agree to settle but would need to with a court judgment. This method is also helpful to discover agreements for behavior from here on out, rather than look backward as to who was right or wrong.

This method is not ideal for settlement when the parties want a solution that cannot be provided through agreement, such as a court decree or an illegal action. This type of mediation also does not work if the participants refuse to participate and answer the mediator's questions to find out whether there is a potential for settlement.

Evaluative Mediation

Evaluative mediation takes a more directive approach. The mediator actively assesses the legal strengths and weaknesses of each party's case. They provide candid feedback about likely outcomes if the dispute goes to trial or arbitration. This style is ideal for technical legal disputes, especially when parties have tried other types of mediation or negotiation, if the parties are not interested in working together to find a solution, or if the case is otherwise unsuited for mediation through agreement by the parties, such as power differentials or one party wanting the other to agree to illegal or unethical terms. However, it tends to be more expensive due to the need for legal counsel and additional legal fees.

If cost is a concern, evaluative mediation may not be the best option. It can take much longer than facilitative or transformative mediation, resembling an arbitration or mini court trial. This often leads to higher legal fees, as participants may need to hire lawyers to draft briefs and represent them. This approach is also not as effective if the participants have issues besides legal issues, such as business or relationship concerns or the negative impact of prolonged litigation on morale and recruitment, even if the company wins the legal part of the dispute.

Transformative Mediation

Transformative mediation adopts a hands-off approach. It focuses on improving relationships among participants rather than merely settling disputes. This method may not be effective if the parties communicate destructively. Without a moderator/facilitator when parties have destructive communication styles, conversations can spiral out of control.

What to Look for in a Great Mediator

When searching for a mediator, consider these essential qualities:

• Neutrality and Non-Judgment: A great mediator refrains from taking sides. They do not view the case as a competition between right and wrong. This skill is especially vital for mediators with a partisan background, such as former litigators or judges. Participants must trust that the mediator can remain impartial, especially if they are an internal staff member.

  
  

• Active Listening and Presence: Skilled mediators hear both what is said and what remains unspoken. They track emotional undercurrents and help parties feel genuinely heard, often for the first time.

  
  

• Neutrality Without Passivity: Effective mediators maintain a firm presence. They redirect unproductive dynamics and encourage dialogue without taking sides. They do not dictate outcomes but empower participants to choose their paths.

  
  

• Clear Process: Great mediators explain what to expect, set ground rules, and guide conversations with structure. This creates a safe environment for honest communication.

  
  

• Ability to Refrain from Bias: Selecting the wrong mediator can lead to further victimization of participants. A mediator must check their biases and preferences to avoid making one party feel uncomfortable or pressured. This is particularly crucial in cases involving discrimination.

  
  

• Emotional Intelligence: Disputes often escalate due to emotions rather than facts. A mediator who can read the room and de-escalate tensions is far more effective than one who focuses solely on legal arguments.

  
  

• Reframing Skills: A mediator should translate a party's position into underlying interests. They must help both sides understand each other’s perspectives. Familiarity with the specific law is not always necessary, but the mediator should ask insightful questions to move the process forward.

  
  

• Creative Problem-Solving Skills: Many people seek mediation because litigation is not ideal. A skilled mediator can help parties brainstorm creative solutions that lead to win-win outcomes, rather than lose-lose scenarios.

  
  

• Focus on Resolution, Not Victory: The goal of mediation is not to win an argument. Instead, it is about designing an agreement that all participants can accept or repairing relationships.

  
  

Practical Considerations

Technological Savvy and Mediation Location

Some mediators struggle with technology, preferring in-person meetings. However, in-person mediation can be costly and impractical, especially if participants are in different time zones. Virtual mediation can sometimes reduce tensions and prevent escalation.

Language

Language barriers can complicate mediation. Adding an interpreter may increase the time required and create challenges in finding someone suitable. A mediator who can communicate in the participants' language or utilize interpretation technology can make the process more accessible.

Imbalance of Representation

When one party has legal representation and the other does not, it can create an imbalanced dynamic. This is particularly problematic in evaluative mediation, where having counsel is advantageous. Mediators must be aware of this imbalance to ensure fairness.

Myth to Bust

"The Best Mediator is a Lawyer or Has Legal Training."

While legal knowledge can provide context, it can also bias the mediation process. Many lay participants understand how to discuss their disputes without being lawyers. Some lawyers and judges criticize mediators with legal backgrounds for focusing too much on legal frameworks rather than fostering genuine dialogue.

Big Little Insights approaches every mediation as a conflict resolution process first. We draw on coaching, facilitation, and systems-thinking methods to create conditions where parties can reach genuine agreements, not just legally sufficient ones.

In conclusion, selecting the right mediator is crucial for effective conflict resolution. By understanding the different mediation styles and what to look for in a mediator, you can save both disappointment and money. Remember, the goal is to create a vibrant work culture where differences are managed constructively, and relationships are strengthened.