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.

Whether you work remotely or face-to-face, conflicts are often a part of the business world. In fact, one early study found that managers spend 20% of their time dealing with conflicts. A later study put that at 2.8 hours per week. And a more recent survey of 5,000 full-time workers in the United States, Belgium, Brazil, Denmark, France, Germany, Ireland, the Netherlands, and the United Kingdom, revealed that almost 30% of employees deal with conflict frequently and that 85% deal with it to some degree.

Conflicts that aren’t dealt with in the workplace do have considerable negative outcomes. Those can include project failure, absences, resignations and terminations, reassignment, personal attacks, and bullying. What should be management’s role? The survey of the 5,000 workers asked what they thought management should do. About 6% felt that management should do nothing. The top three suggestions workers had were (1) identify and address underlying tensions before things go wrong (2) have more informal one-to-one conversations with people they manage and (3) act as a mediator to resolve the issue. 

But here’s the problem: While 40% of workers want managers to act as mediators, most managers have never received any formal conflict management training, and as a consequence, don’t see acting as a mediator as part of their role. Mediation in the workplace can be of two types: Bring in an external mediator to the help with a dispute or train internal managers so that they have mediation skills they can apply when disputes arise.

Perhaps the most extensive use of external mediators is by the U.S. Postal Service. In the mid 1990s in Florida, employees filed a class action suit complaining among other things that the post office Equal Employment Opportunity (EEO) complaint process was slow, remote and ineffective in dealing with workplace disputes. The parties agreed that a workplace mediation program would be an effective way to address issues in the post office, so a pilot program launched in 1994 grew nationwide and is now known as REDRESS and available to all postal service employees. The style of mediation used in the program is known as the transformative style of mediation that as implemented in the post office has the objective to “transform” working relationships by having the disputing parties openly discuss their issues to gain a better knowledge of their conflicts and improve their skills to communicate with each other. The Post Office believes that this results in a better workplace environment. 

My belief and experience is that managers themselves can learn to employ mediation skills to help workers deal with workplace conflicts quickly and easily, which in turn will avoid negative consequences to the organization and to the individuals involved.