Role of the Mediator
Selecting a Mediator
Characteristics of the issue you are facing and
characteristics of the mediator are both important in making a
good match. For environmental and public policy issues, the
following are some useful questions for evaluating a mediator.
(For tips on selecting a mediator for family, commercial, and
other issues typically involving two parties, see
www.mediate.com):
What are the characteristics of the dispute that affect the
qualities needed in a mediator?
- What are the goals of the process? In addition to
resolving the issues at hand, goals of the process may
include preserving or building relationships. A mediator’s
style of working may be more or less appropriate to
achieving this goal. Some mediators make extensive use of
caucusing (meeting separately with parties to explore
options and offers and then conveying information back and
forth through “shuttle diplomacy”) rather than face-to-face
meetings. This can be an effective technique, particularly
for highly polarized debates, but may not help the parties
improve their ability to communicate with each other
directly. Mediators with coaching experience also may be
useful if the goals include improved relationships.
- How many parties are there? Environmental and
public policy disputes often involve multiple parties. This
affects every aspect of a consensus building process from
the interpersonal dynamics to the size of facility needed to
host a meeting. It also frequently raises representation
issues. A mediator’s experience with cases involving a
similar number and mix of parties should be explored.
- At what stage of “maturity” is the dispute? A
controversy may be an early, formative stage in which
defining the issues or gathering data may be the most
important steps. Alternatively, the dispute may have been
going on for a long time, and parties may have publicly
staked out specific positions on issues. Different styles
and emphases can be useful at different stages in a
conflict.
- What is the level of public scrutiny of the issues in
dispute? Some public policy issues require a mediator to
deal skillfully with the press, elected officials and
interest groups not directly involved in the negotiations.
If these are factors in the issues in dispute, a prospective
mediator’s experience and skill in this area should be
evaluated.
- What is the technical complexity of the issues
involved? Is subject matter expertise required? In
highly technical negotiations, a mediator should be able to
understand the parties’ positions and underlying interests
well enough to ask questions that help parties evaluate
those positions and generate new options. This may require
expertise in the subject matter, or at least sufficient
technical background to learn about the issues (although the
mediator and parties alike should be careful that a
knowledgeable mediator not substitute his or her technical
judgment for that of the parties or their experts). Consider
the mediator’s experience in designing processes to resolve
technically complex issues, e.g. by evaluating the state of
knowledge and jointly pursuing critical information.
- Is legal or litigation expertise required? Many
mediators who are not attorneys ably handle issues that are
in litigation or involve complex legal issues. However,
there may be situations in which a law degree or extensive
legal experience could be helpful, including: when this
would contribute to the confidence of the stakeholders or
the responsible agency (e.g. if a case is referred by a
court for mediation) or when legal background would help the
mediator ask questions critical to the process.
- Does the dispute involve cross-cultural dynamics or
issues? If a dispute involves language or cultural
barriers or wide differences in the parties’ resources or
expertise, it is important to assess a mediator’s experience
and success in addressing similar situations, communicating
with all parties and gaining their trust.
Other factors to consider:
- The mediator’s experience and qualifications. In
addition to the specific kinds of experience discussed
above, parties should evaluate the mediator’s length and
depth of experience, membership in professional societies,
degrees, training and certifications.
- Ethical standards/Potential conflicts of interest.
A mediator should be able to articulate the standards or
code of practice that he or she adheres to. As part of
ethical practice, a mediator should ensure that no actual or
potential conflicts of interest exist between the mediator
and the parties or issues, or that any such issues are fully
disclosed to and discussed with the parties.
- The mediator’s personal style: Parties should be
comfortable with the style of the mediator and confident in
the mediator’s ability to communicate, to analyze issues and
generate creative options, to be sensitive to parties’ needs
and to lead and be persuasive when necessary.
- Ability to manage meetings and written products.
Consider the mediator’s experience with and resources for
providing logistical support, including support staff,
access to meeting rooms, ability to manage mailings by fax
and e-mail, etc. If the mediator will be asked to produce
meeting summaries or draft agreements or other documents,
parties should ask for and evaluate writing samples.
- Availability. Can the mediator reasonably
accommodate parties’ needs for scheduled meetings and urgent
consultations?
- Cost. What are the rates for the mediator and
other staff and how is billing handled (hourly, daily,
etc.)? If costs are to be apportioned among parties, does
the mediator have experience and systems available to do
that?
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