Is There a Difference in Mediators?

Many many times were ask: “Is there a difference in mediators?” such as, training, education, attorney, practice area, volunteer, private, community, style, etc. This article by Dr. Justin Wood, Th.d., CJME,  I hope to clarify many of these questions.

Education Level

A mediator with a good education can think around different problems to see solutions and understand more robust situations. Understand when I say education, I am including life experience as education. Mediators with life experience, military service, children, own or run a business, board members, ministers, etc. have a lot of problem solving skills and this is the backbone of any great mediator.

Training and Continuing Education

I am a firm believer in mediators having quality training, not one-hour internet video training or self-trained but a good solid foundation with continuing education requirements every year. These people will be members of third party organizations whom credential ADR professionals and oversee the Certified Education (CLE, MCLE, CME, CAE, BCE, CNE, etc.). Without quality training combined with yearly continuing certified education, the mediator becomes stagnant, out of date, lacking in vision and may slump into unethical practices.

Volunteer, Private and Community

When choosing a mediator, especially on a budget, you have many options. With all mediators and ADR programs, strongly consider the type of case and quality of the mediator. Look for quality training credentials, third party credentialing and yearly required continuing education. Don’t be afraid to ask them about their experience, training, recent training, membership programs, etc. Let’s look at the differences.

Private mediators will normally be the best trained and most qualified ADR professionals in the industry. With that, they will charge a fee but should be reasonable for the area, industry, subject matter and type of dispute. Private mediators are in this industry for their livelihood; which if they are quality trained, educated, and maintain continuing education, will serve you the best. Even if they have other ventures: law practice, business, ministry, etc., they are there because they have a drive and commitment to excellence.

Community mediators can be paid or volunteer and may have oversight from professionals. These ADR professionals want to help their communities, the poor, elderly, and people whom could not afford ADR services and where the case is too complex or too large or too restrictive for state volunteer mediation programs. These types of mediators are perfect for neighborhood disputes, social conflict, bullying and other not necessarily legal matters.

Volunteer mediators must be broken down into several different groups as there are vast reasons why they volunteer. Private and community mediators join volunteer programs to get experience where they are lacking, experience different types of cases and to fulfill yearly required volunteer work per their continuing educational standards. Others who work part/full time jobs or are retired have a desire to help others but may or may not be quality trained or have continuing yearly educational requirements. Those that volunteer without being part of a third party credentialing organization and not completing yearly continuing education may not have the proper ethical standards, knowledge to resolve cases or the ability to perform at a professional level.

Volunteer mediators are very low cost or free to the parties, but this may come at a price to you. When people perform free or volunteer work, it is not normally of the best quality. They can have restrictive time constraints, program guidelines that are not conducive to tough problem solving, get tired, frustrated, lack desire, or just plain don’t care.

Practice Area vs General

Yes, there is a big difference within these criteria. Obviously, a more rounded mediator can handle more various types of cases but in specialty cases or certain industries, a much more experienced and credentialed mediator whom is familiar with the industry, situations and requirements makes the most sense. This is not to say most any quality mediator cannot perform well, but extra questioning, misunderstandings, elaboration on topics may slow the progression due to lack of knowledge.

Let’s take divorce mediation. In divorce there are various special requirements that must be addressed for a judge to accept the mediated agreement. Division of property, debt, co-parenting, visitation, child support, parenting classes, and many more. A mediator that is not experienced in this field may miss crucial requirements leaving the mediation half done requiring a return to mediation or further litigation.

Let’s take construction mediation. In construction, there are various fields, expertise and licensing that may need to be considered during the mediation. If the mediation deals with repair to a home not performed properly and has also electrical issues, an electrician is needed to approve what needs to be done, what it will require, permits, licensing or other industry specific needs. Construction mediation that does not contain the right people may fall apart once the parties leave the table.

Attorney vs Non-Attorney

There is a big difference and several reasons to choose one over the other in this instance. First off, attorneys are trained in law school to fight for their client’s rights and desires, but the problem is mediation is NOT a fighting arena. Many non-attorney, also called layman, mediators have a much easier time working out agreements compared to their attorney counter-part. This usually comes from their involvement in business, ministry or social organizations where looking for solutions not legal battle axes creates a more peaceful and problem-solving atmosphere.

Attorney-mediators may also get bogged down into legal standing. Mediation is the party’s agreement which may not be the best legal standing. IE: In a mediation over breach of contract for unpaid invoices. The initiating party may have EVERY legal right to insist on full payment but may be content with 85% just to be done and move forward. Many attorney-mediators have a hard time letting go and simply moving forward as they see where a party stands within the judiciary’s eye. IE: In a divorce case, the law may not require the parents to prepare for college, car purchases or private schooling but this may be of GREAT interest to the child and parents. Non-attorney mediators seem to handle these non-legal requirements with ease compared to attorney-mediators who see what law requires.

Mediator Style

There are several styles of mediation and these can vary drastically and may impact your mediation. The plans of the parties, what the situation is concerning, how participants handle feelings and many other factors need to be considered when choosing a mediator.

Facilitative, proposal-based and hybrid mediation styles are great for allowing the parties to explore ideas, find solutions, think through situations, dig out creative solutions and resolve problems. These are the most widely used styles and will benefit the most people during mediation. This allows the parties to have the most control to come to their own dispute resolution but focuses more on the solution than feelings.

Perspective and transformative mediation styles allow for the parties to express their feelings to deal with the hurt, anger and frustration more than the former. This allows parties to get matters off their chest which at times allows for the parties to break-through to a solution. One issue: when the other party does not want to deal with their feeling or hear about a party’s feelings, this can stall or create an impasse as the parties fail to communicate to find a solution.

Evaluative mediation style is unique, limiting, and a dangerous methodology; if not used correctly. This style is where the mediator can interject their view of how the parties stand from a legal position or how their agreement or failure to agree will impact their standing in front of the judiciary. This model needs to be used very sparingly as it can remove the first rule in mediation: parties’ self-determination. Stating an opinion about a party’s standing can sway not only that party but their counter-part creating an imbalance. Why agree to a solution when your told you have the winning hand?

There is another issue with this model which deals with the Unlicensed Practice of Law (UPL). Some states, Oklahoma, do not have statutory UPL where others have outlined statutes that specifically list practices of law, but all will review cases brought to the judiciary’s attention. Unless the mediator has specific training and education in law or is a licensed attorney within that jurisdiction; it is unethical to use the evaluative style and, in some cases, illegal under UPL.

I hope this has answered many questions you may have about the practice of mediation and if you have specific questions not addressed in this article, please feel free to contact me and I would be glad to answer them for you.