Mediator Selection
| Author | Stephen Walker/David Smith |
| Pages | 59-78 |
5.1 Introduction
In this chapter, we consider where to find a mediator, what to look for when appointing one and the dangers of engaging in a phoney war with the other side over the choice of mediator. Lastly, we provide checklists for the mediation agreement and the venue.
Mediators are usually selected rather casually. Parties often do not consider what sort of mediator will benefit their circumstances or their dispute. Some will want a mediator who is a specialist in their particular issue or whom they have used successfully before. It might be worthwhile for the parties when selecting a mediator to consider:
• the nature of the dispute;
• the issues that are the main thrust of the action between the parties;
• the relative strength of the various aspects of the case;
• the outcomes the parties are interested in;
• the personalities of the parties and the mediator;
• the diverse mediation styles and skill-sets now available.
The vital question that the parties should ask when thinking about choice of mediator is ‘What will the mediator do for me?’. This, essentially selfish, consideration cuts through many of the issues surrounding mediator selection and returns the focus to the fundamental purpose of hiring a mediator – settling the dispute.
There were two helpful surveys in 2012 on what commercial users consider when selecting a mediator: the Eighth CEDR Audit and the Commercial Mediation Group Survey (Commercial Mediation Group, Linklaters, February 2012) (CMG Survey). Some of their conclusions are discussed in para 5.6.5. Since then, further information has become available in the IMI Global Pound Survey that was carried out between 2014 and 2017 (see www.imimediation.com). Four hundred stakeholders in 24 different countries participating in 29 conferences voted. The key findings were that end-users:
60 Advising and Representing Clients at Mediation
• when asked about the role that they wanted their lawyers to play said that they wanted them, firstly, to act collaboratively with the other side and, secondly, to advocate their own position. The lawyers thought that their role was the other way round;
• thought that the main factor in determining outcomes was consensus. Lawyers thought it was the rule of law;
• did not think that it was necessary for issues to be fully developed in order for there to be negotiations leading to settlement;
• wanted to manage risk and achieve certainty, and in particular to control and contain them.
5.2 Where to look for a mediator
There are a number of ways of finding a mediator. Some of the most commonly used ways are described here.
5.2.1 Internet search
If ‘mediator’ is typed into a search engine, the result is masses of references and names. Most mediators have websites, so it is easy to refine the search, and it really depends how much time and patience is available.
5.2.2 Panels
Some panels are operated by mediation service providers. There are now a large number of them ranging from well-established ones, such as ADR Group, CEDR or JAMS (a fairly recent entrant to the UK market from the USA) which are also training organisations, to ones associated with professional bodies, such as the Law Society, Royal Institute of British Architects or the Academy of Experts. They usually charge their panel members a fee to be on the panel and the users a fee for organising the mediation. Sometimes this is a separate administration fee, but more usually it is included in the fee they charge for the mediator.
5.2.3 Barristers’ chambers and firms of solicitors
Mediators who are also practising barristers are usually clerked by their chambers and can be booked as mediators in much the same way as they can be booked for court. Some chambers identify specialist ADR or mediation groups within their sets and offer rooms for mediations. More and more firms of solicitors are doing the same thing often with a specific marketing brand as a mediation service provider distinct from their
ordinary dispute resolution services. Clerksroom is a hybrid – attached to a set of barristers’ chambers but also a mediation provider with a large panel made up of a diverse range of mediators.
5.2.4 Independents
These are not attached to a training company or a professional body, but are groups of mediators who share some common facilities, such as In Place of Strife or the Panel of Independent Mediators. The IMI has set up a peer-reviewed accredited panel of mediators who are competent to conduct international mediations.
5.2.5 Individuals
These are people who practise as mediators. They may be panel members or working in professional firms and they may not be affiliated to anyone.
5.2.6 Directories
These can be used in the same way as finding any other type of supplier. The main ones in the UK are Chambers UK and The Legal 500.
5.2.7 Civil Mediation Council register
This is a list of members of the CMC who have asked to be included on the list. It does not imply any endorsement or recommendation.
5.2.8 ‘Little black book’
Many firms of solicitors and other professionals as part of their quality control systems have lists or databases of approved suppliers for internal access. In addition, many practitioners after a few years will have compiled their preferred list – or ‘little black book’ – of professionals, whether counsel, forensic accountants, valuers, etc. Practitioners now include mediators in their ‘little black book’.
5.2.9 Recommendations
As with craftsmen and tradesmen, this is often the best way of finding a good mediator. Colleagues, friends, counsel and other mediators can be asked for recommendations.
Clients should not be forgotten. Some of them, particularly insurers, have their preferred mediators. According to the CMG Survey, 95% of the respondents to the Survey said that they used this method.
62 Advising and Representing Clients at Mediation
5.2.10 Advantages and disadvantages of different methods
Using a provider can save time. Providers can sift their members for suitability if representatives do not have anyone particular in mind, and they also sort out venues and times. They provide a complaints system and personal indemnity cover for their members, so representatives can be confident that the mediator they are using will have proper cover, enabling representatives to deal with unsatisfactory performance. However, providers can be more expensive than going direct to a mediator.
Using the ‘little black book’ can be quick, but representatives might find themselves in a rut or using a mediator who is unsuited to a particular dispute because they have always used that mediator. As with all suppliers, representatives need to keep refreshing the pool. According to the CMG Survey, 56% of respondents to the Survey said that they used specialist providers and 40% used directories.
5.3 Essential questions to ask about a mediator
Leaving aside what specific qualities the mediator in a particular case needs, there are certain questions that should always be asked.
5.3.1 What qualifications and accreditation do they have?
Not all mediators are accredited by an organisation. This is discussed in more detail in para 5.4.
5.3.2 How many mediations have they done?
Just because someone has been a solicitor or barrister for 20 years does not mean that they are an experienced mediator. Some cases will be better suited for the more experienced mediator; others will suit the less experienced. The level of experience is usually, but not always, reflected in the level of fees. However, care should be taken, as it is, of course, possible for mediators to exaggerate their level of experience and it can be hard to check. Where a mediator is on a reputable panel the number of mediations will be based on those they have themselves referred to the mediator and the number is likely to be more reliable.
5.3.3 Who regulates them?
The regulation of mediators is discussed in paras 5.4 and 5.5. Some mediators are not regulated by anyone.
5.3.4 Do they have professional indemnity insurance?
There have not been many claims against mediators, but there will be more. Mediator liability is discussed in Chapter 4, para 4.10. If a mediator is held liable for an error, then it is important that they have a means of paying, and this is what professional indemnity cover provides. Professional indemnity cover is not expensive, but not all mediators have it. If this is the case, representatives need to ask themselves why.
5.3.5 What does the CV or mediator profile say?
This should answer some of the questions about qualification and experience, etc. It might also give representatives a flavour of the mediator’s personality.
5.3.6 Can representatives talk to them before deciding whom to appoint?
This is a good way of gaining an insight into what sort of personality the mediator has and whether they are likely to get on with the client. If it is difficult to speak to them in this way, then representatives should think again.
5.3.7 What does the mediator charge?
In the Eighth CEDR Audit, fees were listed as the fourth out of a list of 17 factors that influenced lawyers’ mediation selection. Fees are discussed in more detail in para 5.7.
5.3.8 What is the mediator’s availability?
In the Eighth CEDR Audit, availability was listed as number one. Representatives should ask how many other mediations the mediator did in the previous week. The CMG Survey suggested that users did not want mediators to do more than...
To continue reading
Request your trial