Choosing the right mediator
Growth in mediation in Northern Ireland is a recent development but both the Courts and clients are showing an increased interest and therefore lawyers are having to give active consideration to the use of mediation in every case.
For lawyers choosing a mediator for their clients or for parties choosing a mediator directly the issue is how can they ensure that they are selecting the best mediator for their case? As with the choice of any professional service it’s not a case of “one size fits all” and the old “horses for courses” adage applies equally to the mediator as to any other professional. Personal style and even geography can be relevant considerations but there are some fundamental factors that you should always be assured of before selecting the mediator for your dispute. Here are a few pointers:
A recognised mediator qualification
Research shows that the quality of mediations conducted by someone claiming to be a mediator without formal training or qualification varies enormously. This may seem an obvious statement and the even more obvious question is why anyone would instruct a mediator without the relevant training and qualification, but the reality is that mediation is not currently the subject of compulsory professional regulation and therefore anyone can set themselves up as a mediator.
Fortunately there are many mediators available who have been formally trained and who are members of a professional organisation such as the Mediation Institute of Ireland or the Civil Mediation Council in the UK. Typically these bodies require certification, regular CPD training in mediation, as well as confirmation that a number of mediations are completed each year, regular feedback is obtained from parties and required standards are maintained.
Code of Conduct/Ethics
Again, as with any professional service, you should expect a mediator to subscribe to and follow a recognised code of conduct that makes clear its ethical, professional and behavioural principles. These range from the EU Code of Conduct for Mediators to specific Codes of Conduct such as CEDR or the Mediation Institute of Ireland. Usually a mediator will readily advertise the particular code that they adhere to and, if not, parties should certainly ask for evidence before confirming instructions.
Verifiable Experience
Constraints of confidentiality may prevent a mediator from publishing names of parties in a dispute or from identifying the author of written feedback, however, membership of one of the bodies referred to above will allow a check on the experience a mediator claims to have and will ensure that quoted feedback is genuine. On viewing a mediator’s profile you should expect to see the type of mediations carried out in the past and plenty of comments about the mediator’s style, skills and any specialist areas.
In my own experience I have always found parties very willing to provide feedback and to be quoted anonymously. This not only gives others a helpful idea of the mediator’s style but is of course crucial for the mediator’s own professional development.
Fees
Fees charged by mediators vary enormously and are currently unregulated, therefore it is crucial to check the fees a mediator will charge and have these agreed between parties before proceeding. Fees should be proportionate to the amount involved in the dispute and can be expected to vary according to time and complexity as well. Most mediation providers such as CEDR, the Law Society (NI) Dispute Resolution Service and the Civil Mediation Council will be happy to provide guidance on a range of fees and what to expect.
Although professional training may prepare mediators for all types of commercial mediation there may be matters that are relevant to a particular case, such as the mediator’s personality and style, and one mediator may suit a large commercial dispute while another is more appropriate for disputes in a family business for example. The mediator’s profile, references and experience will provide a good impression of whether they are the right person for your particular circumstances.
Finding the right mediator can make all the difference to the successful resolution of a dispute. The process of mediation itself plays a huge role – keeping the clients at the centre of it, thinking outside the box, confidentiality and trust in the mediator’s skills – all these factors are influential in making mediation work and therefore it is crucial that the right person guides the process.
the better way provides a mediation service that will help you find the right mediator for your particular dispute.