Branding of Mediators
Lawyers are the people typically charged with recommending a mediator to their clients. Elsewhere on this site, we have recommended a process. See Finding a Mediator. The problem is that it can be difficult to identify mediators who understand how to resolve disputes at the earliest possible time. But now many of the best mediators include in their credentials this feature in their approach to the process. They also refer to themselves as Guiding Mediators. Over time, more and more people searching for mediators will ask about the mediator’s familiarity with the Guided Choice Mediation approach. These are the attributes that they will look for in a mediator:
- My role as mediator is to help the parties engage in a process to settle their dispute as early as possible.
- How I implement that role depends on when I am retained, the nature of the dispute, and the type and style of services the parties I will provide my services consistently with any agreements to which I am a party.
- I understand that the parties may not be ready to begin settlement negotiations until their information needs are satisfied and the decision-makers can decide what kind of settlement process is in their best interest. My role is to help the parties satisfy their information needs as quickly and efficiently as possible.
- Some parties may need to commence parallel court or contractual arbitration before they start or continue to negotiate. If asked, I will help the parties design those processes to be as efficient as possible. While the formal mediation may be suspended during this time, I will make myself available confidentially to the parties to facilitate resumption of the settlement process.
- Parties decide to settle disputes for many reasons. These include (1) their predictions about the outcome based on law, facts, expert opinion, and the tribunal that would decide the case; (2) behavioral and social characteristics of the people and organizations that must change before a settlement can be reached; and (3) an understanding of the consequences of a decision to settle or not settle. I will try and identify these factors as soon as possible and ideally before any settlement negotiations begin.
- Based on my confidential conversations, I will identify as early as possible the people and organizations that must be involved in the settlement process. These may include non-parties to a legal proceeding or people or entities that do not have a contractual obligation to mediate. Non-parties may include insurers, governmental agencies, family members and advisors, and experts on whom the parties have relied in formulating their settlement positions.
- I will obtain the above information as soon as possible after I am appointed as a mediator and am empowered by law or agreement to have confidential conversations with people who have information relevant to the design of the settlement process.
- If any of the parties is reluctant to engage me as a mediator, I agree to discuss with representatives of those parties whether my engagement can be in their best interests even if they believe they are not ready to begin a formal mediated settlement process. I will agree that anything discussed before I am retained as a mediator I will consider confidential if so requested. This obligation will be superseded when the parties execute an agreement to retain me as a formal mediator.
- I will use my best effort to continue my education to maximize my settlement skills.