Checklist 7 - Selecting the Mediator
There are occasions when you are choosing the mediator. By working through this Checklist, you can match your dispute to the mediator's skills and abilities. As you answer these questions you will realize that some of the criteris are essential mediator attributes whereas other criteria optional. Keep a list of the essential criteria.
1. What is the mediator's training?
- How many hours over 40?
- What kind?
- From where?
- What continuing mediation training and professional development does the mediator currently participate in?
2. What is the mediator's professional background?
- How will this help or hinder your dispute?
3. Is the mediator a member of a mediation or Alternative Dispute Resolution (ADR) association?
- What organization(s)?
- Does the organization have professional standards for mediators?
- Does the mediator subscribe to them?
4. Is the mediator certified?
- As what?
- For how long?
- By what organization?
- What is the certification process?
5. Is the mediator a member on a mediator roster?
- Which roster(s)?
- What are the criteria for acceptance on the roster?
6. Has the mediator worked with this type of matter before?
- How often?
- How recently?
- Does the mediator want to work with your matter?
- For disputes where couples are separating, does the mediator have comprehensive family experience in property division, spousal and child support and parenting plans or is the mediator's experience limited to helping parents develop parenting plans and determine child support?
7. What other types of disputes does the mediator have experience in?
- How might that experience and knowledge be useful in your dispute?
8. What other mediator experience do you think is important?
- If it is a large group, is it important that the mediator know how to work in this context?
- Should the mediator be able to speak in more than one language?
- What other experience is relevant or important?
9. What is the mediator?s approach to high conflict or high emotion when these are present?
- If this is an abusive relationship, what training does the mediator have?
- Does the mediator prefer to deal with conflict by creating rules, such as "No yelling?" If yes, how do you feel about this?
10. Is the mediation model that the mediator uses appropriate for your dispute?
- Is the mediator's approach one of compromise? Each of the disputants must give up some of what they say they want. Is this how you want to negotiate?
- Does the mediator want to know what each disputant's interests and objectives are? Are you willing to talk about your interests and to listen to the other disputant's interests?
- Is it important to the mediator to address emotional and relationship dynamics before working on the resolution of the dispute? How do you feel about this?
- Will the mediator give you an opinion about your chances of succeeding at trial? Do you want to know?
11. When you spoke to the mediator (on the phone, by email or in person), how did you feel about working with the mediator?
- Did the mediator respond promptly to your communication?
- Did the mediator answer your questions in a professional manner?
- Was his or her sense of humour appropriate?
- Did you feel respected?
- Did you feel good about the conversation ? What is your intuition telling you?
12. Does the mediator's gender or age matter to you?
- How do you perceive it will affect the other disputant(s)?
13. Does the mediator have a conflict of interest?
- Has the mediator, or her law firm, had any previous contact with any of the disputants or their lawyers? Does it matter?
- Does the mediator, or his law firm, have any current contact with any of the disputants or their lawyers? Does it matter?
- Are you concerned that the mediator may be biased because of who pays the mediator or because she works with (insurance companies/hospitals/child protection agencies) all the time?
- Has the mediator disclosed the contacts willingly and engaged in a forthright discussion with you about how the current or former contact could impact the mediation?
14. Is it important that the mediator be able to work with your culture?
- What is his attitude to (gays, dentists, Persians, etc.)?
- Has she ever mediated with individuals from this culture?
15. If the disputants are from a defined group, is it important that the mediator not have any knowledge of or contact with people in this group?
- What would happen if other members of this group found out that the mediator was working with you?
- Does the mediator have well-known biases that you want to bring into the mediation?
16. Is the perception of the mediator?s status important?
- Should the mediator be a judge or former judge?
- Should the mediator be senior? with greying hair and have a degree or professional status?
17. Does the mediator have empathy? Is the mediator patient?
18. Is the mediator confident about her ability and about mediation?
19. Is the mediator curious and unwilling to make or accept assumptions?
20. Is the mediator willing to let, and possibly encourage, mediation participants seek creative solutions?
21. Is the mediator mature?
- Does he possess self-control?
22. What is the mediator's fee?
- What other charges are there?
- How does the mediator wish to be paid?
- What circumstances would vary the mediator's fee?
- Is the fee agreement clear?
- When is payment expected?
- What happens if one of you does not give notice that you are unable to attend a mediation meeting?
23. What is the mediator's availability?
- How soon can the mediator conduct the mediation?
- Is the mediator able to continue the mediation if more time is needed than what is anticipated?
24. How does the mediator deal with confidentiality?
- How is the confidentiality of the mediation process protected?
- If there is communication before the joint mediation meeting, does the mediator treat these discussions as confidential? How?
- If the mediator will have separate meetings? caucuses? with the disputants or their attorneys during the mediation, does the mediator treat these discussions as confidential from the other disputants?
25. How does the mediator work?
- Does she use preliminary conferences?
- What is the purpose of the preliminary conferences?
- Is he willing and able to work electronically?
- How long are the meetings?