From time to time I get calls from friends and acquaintances asking me to mediate a dispute for them. My rule is not to mediate with friends. For starters, there is a potential conflict of interest simply because of an ongoing relationship that might disadvantage the other party in the dispute. The second concern is that the friend might assume that I would continue to be available to help them and enforce their agreement. When I explain that I can’t be their mediator, they usually share that they’ve looked online and found a wide range of mediators, attorneys and mediation organizations offering their services and ask me for recommendations.

I am more than happy to do that, but I also give them tips to become a better informed mediation consumer and I’d like to share some of those tips here:

1. As a potential consumer of mediation services you should learn more about the background of the mediator. But what I suggest you ask is, “How many mediations have you done?,” and then ask for some kind of validation of their answer. Experience makes a difference. I would advise going with an seasoned mediator.

2. Follow question #1 with how many mediations of your type of dispute they’ve conducted and how comfortable they are dealing with it. For example, most mediators are able to handle real estate sessions, but one who has done many relating to that field will simply be more familiar with the terminology.

3. If the mediator tells you they have a high settlement rate, I would actually be a bit concerned. Remember, mediation is about the disputants making their own decisions and sometimes that means choosing not to settle. A mediator who is primarily concerned about settlement rate might pressure disputants to settle even if they don’t want to.

4. Equally important is to ask what style of mediation they use. As the disputant you have a right to determine the style of mediation you prefer. If the mediator says “transformative style,” they will encourage you in the session to focus on the relationship between the disputants. If the mediator says “evaluative style,” they will be actively involved in evaluating and suggesting solutions. If the mediator says “facilitative style,” they will be assisting the parties to work out their own solutions.

5. Finally, ask about cost. Mediation services range from free to several thousand dollars. Free and low cost mediation as offered by community mediation services can be as effective as the more expensive option. Cost should not be the determining factor. Go with whatever feels right to you.

Recently, I’ve been addressing concerns that have arisen about mediation, such as feelings that a mediator was not impartial or didn’t explain the process. There is another concern that has been brought to my attention that I’d like to share and to illustrate it I’ve created an example based on several cases. The actual case that follows is not true in and of itself:

In this hypothetical case, a seller and buyer of a small hotel were in dispute over improvements made to the location. A year before the hotel sale, the buyer added a bathroom. He did the work himself and did not securing inspections. The buyer was now faced with a significant added cost of redoing much of that work to meet code requirements. The buyer contended that that work should have been disclosed before the sale. The seller was not contesting that he did the work himself and that he had not secured the required inspections. While he asserted that details were verbally disclosed, nontheless he was ready to discuss a settlement to protect the sale. The buyer was ready to work out an agreement quickly as that part of the hotel had been closed and off limits to guests.

With both parties anxious to settle the mediation process went smoothly. The parties were moving to an “off-the-record” adjustment to the sale price when one party asked to consult with his accountant and his attorney. He believed he heard the mediator say that the objective was to settle this dispute then and there. He believed he was being pressured by the mediator and the other party to settle at that moment.

Let’s just say that after the fact, their agreement came under legal review.

It is most clear in the “Model Standards of Conduct for Mediators” adopted by the Association for Conflict Resolution, the American Bar Association and the American Arbitration Association that mediation must be conducted on the principle of self-determination. This includes that the parties should be able to make decisions freely. In the standards it states, in part, that “where appropriate, a mediator should make the parties aware of the importance of consulting other professionals to help them make informed choices.”

No one during mediation should feel pressured to make an uninformed choice. The parties have the right to stop the mediator or simply ask for a recess. Personally, I’ve done many mediations where a party has asked for a recess to step outside and make a phone call to their attorney. Having done so, they usually return better prepared to reach an agreement that is lasting and have done so with peace of mind.