DID I GET A GOOD MEDIATOR?

This week a former employee asked me about a mediator his family had contracted to conduct an estate mediation. He showed me the mediator’s terms of service letter. To say the least, I was upset to see it. Not only was the quoted rate on the high side, the entire letter went into detail about payment, cancellation policy, and late fees. There was nothing about mediation nor about the mediator. 

While I am a strong advocate of mediation, I need to also help consumers understand how to find a mediator they can be comfortable with. My former employee had three questions: 

The first question was if the mediator should be an attorney. Some of the very best I know are NOT attorneys, but also some of the very best mediators I know ARE. The roles of attorneys and mediators are separate and distinct. It is unethical for an attorney acting as mediator to provide legal advice or counsel to anyone involved in the process. 

The second question was if mediators are licensed. There is no national training requirements nor credentialing for mediators. Many state and federal courts have rosters of approved mediators for certain court mediation programs, but there are no established qualifications to obtain such a role. 

The final question was how to evaluate a mediator’s suitability? My guideline is the number of mediations the individual has conducted as a mediator or co-mediator including, of course, volunteer mediations. All things considered, I put the most weight on experience. I cautioned him to avoid mediators who advertise a “success rate” or the percentage of their mediations resulted in agreements. My concern is how much was that mediator subtly or openly forcing a settlement in order to maintain a high settlement rate. Ethically a mediator cannot promise any positive outcomes. 

To help consumers evaluate a mediator, I suggest the following questions: 

1. Where did you receive your mediation training?

2. How many mediations have you done?

3. How many mediations have you done in [the area of your dispute, for example, disagreements over real estate escrow, etc.]?

4. What style of mediation do you use?

5. Do you have any known prior connection, relationship or other conflict of interest issues with any of the parties in this dispute?

6. Do you work with an attorney should any legal documents be required from this mediation? If you do, may we use another attorney?

7. Do you conduct mediations face-to-face, by telephone or internet?

8. Are you for-profit or non-profit? What do you charge? Do you do pro bono and sliding scale mediations?

Having satisfactory answers to such questions will hopefully help ensure a smooth and successful outcome for all.