- Hamilton Mabie
How to Find a Mediator
Updated April 2013
The systems by which mediators are made available vary widely from setting to setting, and strategies for finding a mediator vary accordingly. The main systems are:
1. The open market. In this system, a number of private practitioners compete for business, as in many other fields. One national database is maintained by Mediate.com, and there are many regional and local listing services, ranging from the Yellow Pages (whether the traditional variety, or a Web equivalent) to local bar associations.
2. Government agency. In a number of settings (e.g. labor mediation, as well as in some court systems), mediators are provided by government agencies who employ them directly as civil servants.
3. Panels and rosters. Many courts and government agencies maintain rosters of mediators whom they do not employ directly, and supply a short list (either random, or chosen to fit specified needs) upon request for a particular case.
4. "Custom built" panels. Some parties who deal with each other frequently prefer to create their own lists of acceptable mediators, and choose only from within that list for any given case.
The process for finding a mediator obviously varies according to which of these systems is in use. General-purpose panels and rosters are typically written into a contract in advance — sometimes, in a "contract of adhesion" that gives one party much more of a role in the selection of the roster than the other party gets. But once the "short list" is received for a particular case, the process of identifying the best mediator for the case is similar to the "open market" situation. Government agency mediators, meanwhile, may or may not work as part of systems which provide for any choice by the parties; some government agencies will allow parties to request a particular mediator, others will not. "Custom-built" panels are the least relevant to most people because they are typically used only by sophisticated parties.
Thus there is not always a choice. When there is a choice of mediators, a party or attorney needs to understand the basic differences in qualifications, but also in orientation and intent, of different mediators. Typically, mediators' quantitative experience can be assessed straightforwardly from resumes or other documents prepared by the mediator and maintained by the roster. Qualitative judgments are more difficult, and experienced parties and attorneys often rely heavily on informal networks of peers to provide advice about the strengths and weaknesses of particular mediators. Interviewing the mediator in advance is advisable, but not always possible; this is particularly valuable if available written data fails to indicate whether the mediator is inclined toward working in a "facilitating", "evaluative", or "transformative" mode, because these three choices can lead to great differences in how the case will be conducted, and frequently parties will have a preference as to which type of mediation they are seeking. The most accessible primer on interviewing a mediator appears still to be "A Consumer Guide to Selecting a Mediator," published by the Alaska Judicial Council (now obsolete in its references, but for the most part still useful far beyond that state).
A young woman living in Florida, with two young children, has the double misfortune in the same year of hurricane damage to the family house while she is getting a divorce. Her insurance company balks at paying what she regards as an appropriate construction cost to repair the house, and she feels she has no alternative but to sue the insurance company. Under Florida court procedure, both the divorce petition and the insurance case are referred for mediation, and she needs to select a mediator for each; but she probably does not need the same mediator for both cases. For the insurance case, she is unconcerned about having any future relationship with the insurance company, and needs a mediator who is familiar with construction issues and likely to be effective at persuading both parties towards a dollar figure that will be adequate to get the house fixed. But for the divorce case, the criteria are different: like it or not, there will be a continuing relationship with the husband at least for as long as the children are minors, and a mediator who is capable of helping the parties preserve a working relationship for that purpose is not likely to be either a construction expert, or inclined towards evaluation. The client accepts her attorney's recommendation of a mediator he has worked with before who has experience in construction issues for the one case, but for the other, contacts a local women's group and canvasses other women in the group who have been divorced, as to their experience with different divorce mediators in the local area.
How to find a mediator is a very occasional problem for most people, and typical clients never acquire much experience at this. For attorneys and other negotiators, it may be such a frequent problem that given individuals develop personal "short lists" of trusted mediators whom they use over and over again.