In addition to our CEDR Chambers group of mediators, CEDR has a 120-strong mediator panel in the UK and another 40 or so around the world. The reality is though that many lawyers don’t realise this as they find a ‘favourite’ mediator and then almost never deviate from using that person in their cases. It’s understandable why this happens but it’s also a huge risk.
It’s understandable as we know that a track record is usually the most important reason why lawyers will appoint a mediator to a case. Disputes are difficult enough to manage in the first place and when you add to this a nervous client then the last thing an external lawyer might want to do is use an untested mediator to help resolve their matter. I know this from personal experience having been used as a mediator five times in the same year by the same lawyer. However in the long term, this is risky behaviour – how do you know that your favourite mediator will always be the best suited in experience, knowledge or even temperament to a particular case? Whilst as a mediator I am always grateful and flattered to have lawyers come back and work with me again, I also want them to be doing the best for their clients and that means considering if a different mediator might be better in a specific instance.
It sounds slightly overstated to say “be brave” when looking at mediators – but you don’t always have to make the same choice. You can develop a strategy to look at different mediators, get a recommendation about who is good from colleagues but also consider their background, the processes they use and other factors (e.g. are they Civil Mediation Council [CMC] Registered?).
It takes a lot for CEDR to invite a mediator on to its managed panel – and this entirely done to give lawyers and clients peace of mind. First, they must have done CEDR’s internationally recognised Accreditation (which is done by taking the Mediator Skills Training course – where there is an 80% pass rate). Then they must have developed their own mediation practice to the extent that CEDR regards them as having proven their ability and that there will be demand in the legal marketplace for their skills. Each mediator must as a minimum have reached and maintain the standard set by the CMC for registration but beyond that is evaluated through feedback after each mediation.
Feedback is important for more than one reason. It enables CEDR to judge which out of its 120 mediators would be most appropriate to recommend to a lawyer for their case (based on the mediator’s noted experience, style and performance). Also through the monitoring of feedback CEDR is also able to ensure it only works with mediators who are performing well.
So whilst I would not say to turn your back on your favourite mediator, you should also keep in mind that there may be others who are just as good or who might, in a certain situation, be a better fit for you and your client and have a better shot at helping find a resolution.
by Andy Rogers