Need a mediator? Don’t Just Phone-a-Friend! Recommendations alone are not the best way to select a mediator

by Michael Leathes
November 2015 Michael Leathes
People usually rely mainly on word of mouth to choose a lawyer, dentist, architect, accountant, surveyor, physician or just about any other professional.

There are two reasons why personal testimonials are useful when you seek most professionals. First, you know the recommender, who usually has direct personal experience of whomever they are endorsing. You rely on their judgement and experience and benefit from a vicarious comfort factor. The second is that almost all professionals owe a duty of care and responsibility to just one client – you. YOU decide whether you are comfortable with the professional’s style, knowledge, experience and reputation. The choice is yours, and yours alone.

Mediators, however, unlike most traditional professionals, owe an equal duty of care and responsibility to all parties, not just to you. While you may feel comfortable with the choice of a particular mediator, the other party or parties might not. In the midst of a dispute, the other party may well react negatively to any mediator proposed by you for no better reason than that the suggestion originated from you. Many disputants reactively devalue proposals emanating from their opponents. One of the main tasks of a mediator is to change that.

There are other problems with the phone-a-friend referral. A mediator who may have been just right for one dispute may be unsuitable for another. This may have little bearing on the mediator’s competency as a dispute resolver, but be rooted in highly subjective and even irrational factors such as their nationality, culture, language proficiency, background, location, gender, age, professional experience or something else that might influence one party’s perceptions.

Mediators need to be trusted by all parties for their work to succeed. If one party feels or even suspects that another has some kind of special relationship with a proposed mediator, for example if the other party's lawyer has used that mediator previously for other clients, that belief alone can interfere with their willingness to trust the mediator.

And there is another problem. Mediation is still an emerging, not yet a fully-recognized, profession. In most countries, anyone can set themselves up as a “mediator”, whether trained and experienced or not. Even today, many do not declare whether they adhere to a prescribed Code of Professional Conduct, and if so which one, and what the consequences are of an unauthorised disclosure of confidential information or other Code breach. This can cause some parties to approach mediation, and mediators, with skepticism or caution, especially when the mediator is recommended by word of mouth. Directories and the personal websites of mediators often do not help in the reassurance stakes. Hesitant parties need more comfort to sooth unexpressed fears or concerns and embrace a proposal to mediate.

Phone-a-Friend Alternatives

Parties need to be confident in their choice of mediator on two basic levels: competency and suitability. They are related, but mutually exclusive. A competent mediator is not necessarily suitable for a particular set of circumstances. For example, one party may feel that a competent mediator who shares the cultural credentials of their opponent is unsuitable. Conversely, a person may be very suitable to all parties (for example, is well respected, expert in a particular field and seen as impartial by all sides), but may not be a trained and experienced mediator. Competency in mediation, as in most other professional fields, is very much related to experience levels.

So the most reliable way to choose a mediator is independent research, in which personal recommendations only play a small part. Many ADR provider organizations publish detailed resumés of their panel members. The good providers have careful selection methods for panel members and enable users to apply filters to narrow their choices based on certain parameters. Most mediators simultaneously present themselves on their own websites. But conducting research using these traditional methods can be sub-optimal. Most parties are passionately interested in the experience of previous users. However, most providers do not publish that information about their mediators. The websites of many mediators merely feature cryptic endorsements of prior users, usually unattributed and always carefully cherry-picked. Even though these quotes are intended as a convincing endorsement of competency, users are unlikely to attribute much weight to self-attributed claims.

The International Mediation Institute was established in 2007. IMI is a professional body set up in part to crack open this selection conundrum by making available to users more objective, transparent and credible information about mediators. IMI does not provide mediation services, and therefore has no financial stake in whether a mediator is appointed. The IMI web portal includes an open search engine enabling users to identify certified mediators meeting core requirements in terms of location, language capability, practice area and mediating style. Crucially, the profile of each IMI Certified Mediator includes an independently-prepared Feedback Digest summarising comments made about the mediator by parties in prior disputes. Details of the mediators’ code of ethical conduct and disciplinary process are also included. www.IMImediation.org

The IMI portal is a great tool for starting the search for the right mediator, and can be supplemented using the websites of ADR service providers and individual mediators. It shortcuts a great deal of time-consuming research. The IMI profiles address competency, experience levels and suitability. They enable a shortlist to be shared with the other party or parties, and to invite their comments and identify their preferences – something that Phone-a-Friend cannot begin to do.

Mediators need to use online technology more effectively, and be more transparent and convincing about their performance. Users need more data before they select mediators and not be left to rely on guesswork and hearsay. Only then can mediation develop into a fully-fledged profession, and really grow.

Biography


Michael Leathes is a former Director of the International Mediation Institute (IMI). He spent much of his career as an in-house counsel for a number of international corporations in a variety of roles, including General Counsel of Pfizer International (1984-87), General Counsel of International Distillers & Vintners Limited (1992-97) and Head of Intellectual Property of BAT (1997-2006). He has spent much of that in-house career managing disputes around the world.



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Website: www.imimediation.org

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