Today there are more businesses than ever using mediation to resolve their disputes. The mediation market is constantly growing there are now well over 10,000 mediations taking place annually (more if you include small claims run through schemes for businesses) in England and Wales – according to CEDR’s Mediation Audit.
With over 300 mediators registered with the CMC (Civil Mediation Council) coming from a range of professional and commercial backgrounds how do you ensure you get the best mediator for your case? It is about being curious and exploratory, asking for and finding recommendations, whilst balancing this with appointing a mediator that has the track record that will satisfy your needs.
It is important to note and act upon the fact that you have the power over the choice of mediator regardless of whether you are the party proposing mediation or responding to the request.
As a starting point, the following factors can be useful when considering selecting a mediator for your case.
Personality and style – The party’s needs (client, expert and lawyer) should be a consideration so that their personality and style can be matched to the mediator. Get in touch with mediators or do a bit a research on who you are selecting to ensure you can work with him. CEDR publishes full profiles of all its panel mediators and there is video advice from some senior Panellist’s that can help in this regard.
Experience and background – Would a lawyer or someone with content expertise – an accountant, surveyor, or HR professional – be appropriate? Or might a general business person (with commercial acumen) be better able to work with parties toward a commercial solution that has, thus far, resisted the efforts of legal and technical minds?
Mediator fees – One of the key elements of the Civil Procedure Rules has been accessing resolution that is proportionate to the amount of the dispute. CEDR can provide mediators to best suit your case from low-cost schemes and time-limited options to full day plus for complex cases where logistics, preparation time or other issues necessitate reserving a mediator for longer periods of time.
Code of conduct – All mediators should follow a recognised Code of Conduct that states ethical, professional and behavioural principles. Some state basic principles such as the EU Code of Conduct for Mediators, others, such as the CEDR Code of Conduct for Third Party Neutrals, go into more detail with Model Procedures, to ensure the highest standards of practice.
Independent feedback and de-selection – Is the mediator subject to continual feedback on their performance through a structured feedback mechanism? Do they work with a provider who will de-select them if required standards are not maintained?
Recognised mediator qualification – Some businesses have instructed a professional because of their reputation or standing in the sector, without checking if they have a formal mediation training. Research shows that the quality of such ‘informal mediations’ can be variable probably because the mediation process itself plays a huge part in the successful outcome of a mediation. With such a rich seam of mediator choice, it would be safer to check if that professional has a recognised accreditation.
Continuing professional development (CPD) – Does the mediator maintain practice standards through continuing development and training as required by the CMC? How is that demonstrated?
Verifiable track record – Mediation skills are enhanced with use. The year of qualification means little, nor does the absolute number of mediations. Better to confirm that the individual mediates regularly and has done so recently – at least twice a year and most likely for complex, high-value cases at least once a month. Be equally careful though that your mediator has time to focus on your case and isn’t rushing in or rushing out to mediate or work on something else.
References – Whilst colleagues will be able to act as a point of reference, the downside is you are limiting your choice to a small pool of well-known names. With over 100 mediators a year gaining the sought after CEDR Accreditation – and many of these senior professionals – you might be better served by relying on a recognised provider. With confidentiality often being an issue with references, providers are able to give independent, up to date recommendations based on feedback provided to them on a confidential basis.
Finding the right, best-skilled mediator can make all the difference in unlocking a deadlocked dispute. You need to be proactive when choosing your mediator so that with confidence you can not only select the right style of ‘neutral’ but also find the right experience your dispute requires. Our dispute resolution team manage over 1,500 mediation inquiries each year with 95% of users rating their service as good or excellent – they’d be happy to take your call.
By John Munton