Wisely Choosing a Mediator: Mediator Impartiality

My last several posts have discussed factors a lawyer or party should consider in selecting a great mediator. Today, I'd like to talk about mediator impartiality.

I have discussed this topic, one of the core values of mediation, in a much lengthier law review article: Teaching the Ethical Values Governing Mediator Impartiality Using Short Lectures, Buzz Group Discussions, Video Clips, a Defining Features Matrix, Games, and an Exercise Based on Grievances Filed Against Florida Mediators, 11 Pepp. Disp. Resol. L. J. 309 (2011).  You should be able to download it here. 

Greg Firestone, a Florida mediator, spoke about mediator impartiality at the October 2003 conference of the Association for Conflict Resolution.  He suggests you think about these issues along two dimensions that create four quadrants on a grid.  One side of the grid are the terms “parties” and “outcome.”  On the other side of the grid are the terms “relationship” and “conduct.”  The resulting four quadrants are: “relationship-parties,”  “conduct-parties,” “relationship-outcome,” “conduct-outcome.”  In searching for a mediator, you want someone who can maintain impartiality in these four quadrants.  The leading cause of ethics grievances filed against mediators in Virginiaand Mainerelate to impartiality.  It is the second most frequently cited basis for grievance complaints in Florida, Georgia, and Minnesota.

Mediator's Bias Arising Because of the Relationship to the Parties

The mediator’s impartiality towards the parties is often discussed in terms of conflict of interests.  When choosing a mediator you need to learn if the mediator has any current or prior relationships with the parties or their counsel.  

Does she accept referral fees from lawyers who regularly use her in mediation, therefore consciously or unconsciously creating a bias in favor of the referring attorneys and their clients?  Does she get most of her business from one company or firm?  Can she remain impartial to the party who is not the repeat player in the referral system?  Does the mediator sit on a Board with one of the parties?  Share the role of a church trustee with the other party?  Represented one party in a prior legal matter? Exclude anyone that has a relationship you feel may bias the mediator towards the party with whom he or she has had a prior relationship.  

Mediators should error on the side of over-disclosure of conflicts of interest or potential conflicts of interest.  They should check for conflicts with the same care imposed on lawyers by legal ethics rules.    

Mediators must also avoid creating any conflicts of interest during the course of the mediation – for instance, by buying stock in the company owned by one of the parties.  

Finally, mediators should avoid creating an appearance of impropriety by representing parties as a member of their profession of origin (i.e, lawyer, therapist, or accountant) in the future, in the same or similar matter.  Most ethics codes either prevent future representation in the same or similar matter or they limit future representation until a reasonable period of time has lapsed since the mediation.  It is fair game for you to ask a mediator how he handles the future conflict of interest issues? 

         
Mediator's Bias Arising Because of the Conduct or Attributes of the Parties

Next, you need to consider whether the mediator can maintain, through his or her conduct, neutrality towards the parties when he or she has problems that arise from the conduct or attributes of the parties.  

Will the mediator become frustrated, disrespectful, or heavy-handed if he or she believes you or your client is uncooperative?  Does he hold any racial or cultural biases?  Can he work with people that express racial bias?  Does she think in traditional ways that may impose gender biases or reinforce gender-role expectations in the mediation?  Does anger make him uncomfortable in a way that he may cut off your client’s expression of it?  Does crying make the mediator uncomfortable in a way that he may suppress the expression of sadness, fear, vulnerability, regret and other emotions expressed in this way or other ways?   Can she work with borderlines, narcissists, sociopaths and other high conflict personalities without those parties pushing her buttons or manipulating her?  Does her conduct favor repeat players or parties who may be paying a larger portion of the fee.  

The mediator should be willing to withdraw from the mediation if the parties perceive she is no longer impartial towards each party.

Mediator's Bias Arising Because of his/her Relationship to the Desired Outcome

The next quadrant helps us think about the mediators relationship or bias in favor of a particular outcome even if it is a settlement at all costs.  

Does the mediator brag about a high settlement rate?  Will he work hard for his settlement rate even if it requires coercive interventions that disfavor one party?  Has the mediator succumbed to perceived pressure from referring courts to maintain a high settlement rate?   

Does he have a vested interest in the outcome because his fee is based on a percentage of the agreed settlement?   “Lawyers should decline to retain a mediator whose fee is based on a percentage of the ultimate settlement [where not precluded by the ethics code].  [I]t smacks of impropriety and at the very least, raises serious questions about the mediator’s ability to remain neutral.”  Does he unnecessarily prolong a mediation just to earn additional fees?  

Does she believe that all civil rights related mediations must result in an agreement consistent with Title VII law?   Can he mediate with impartiality as to the outcome in an air pollution case if his son suffers from severe asthma?  Can she mediate with impartiality an abortion clinic real estate boundary dispute if she opposes abortion?  These questions highlight the concern that a mediator will push a party towards a particular outcome because the mediator consciously or subconsciously prefers that outcome. 

Mediator's Bias Arising Out of his/her Conduct Affecting the Outcome

Finally, this last quadrant of the grid focuses on party self-determination and a mediator’s conduct that undermines it.  The mediator may lack skill in supporting party-self determination.  She may also not care very much about it or truly respect it as a core value of mediation.  Thus, he or she may use coercion, intimidation, or other heavy-handed tactics to get an agreement?    She may rely too much on her legal skills by offering legal advice.  He may add terms to the settlement agreement on which the parties have not agreed?

Conclusion

Choosing the mediator is the most important decision you will make on behalf of the client who plans to participate in mediation.  Make the choice wisely and with care.   

What factors do you consider important in the choice of a mediator?  I'd like to know. 

This article first appeared in the St. Louis Lawyer, April 2005, and was reprinted in The Insurance Receiver, Summer 2005, at 11 and at http://mediate.com/articles/young16.cfm (footnotes in the original are omitted in this posting).

Wisely Choosing a Mediator: Factors to Consider

Most states do not license or certify mediators.  They do not require a minimum level of training, continuing education, background checks, or character and fitness reviews.  In most states, a person who has lost his or her professional license in one area can nonetheless (and easily) open shop as a mediator.  Most states do not have standards of ethics that apply to all mediators and no grievance procedure allowing a client who believes something has gone terribly wrong in the mediation to report the wrongdoing.  Most states do not have the authority to sanction or otherwise prevent the activities of rogue mediators.

A few states have standards of ethics and some entry barriers to the profession consisting primarily of minimum training requirements.  In Missouri, a person can become a “Rule 17 qualified” mediator with less time spent in training than he or she spent watching TV the same week.  But even these ethics rules and modest training requirements typically only apply to mediators who seek to be listed on mediator rosters in court-connected mediation programs. 

In other words, just about anyone can hang up a shingle advertising his or her ability to conduct private mediations.   For lawyers and clients and other mediation parties, this information should tell you that the “buyer [must] beware.”  You need to take the time to choose your mediator wisely and with care.  Mediators vary greatly in skill, training, experience, and temperament.  Parties choosing a mediator must approach the task on a case-by-case basis, considering the facts, emotions, relationships, and law of the dispute as they may affect the attributes you need in mediator.

A good mediator can enhance the likelihood the parties will reach agreement.  A bad mediator will impede the settlement process and may undermine the parties’ relationship, as well as their confidence in the mediation process as a means for resolving future disputes.  Bad mediators will cost the parties additional time and money. 

Several years ago, I read all (yes, all) the advisory ethics opinions and grievance filings involving mediators issued by the ethics panels in Florida.  It brought home to me that a lot of sloppy mediation occurs that affects the core values of mediation: impartiality of the mediator, confidentiality of mediation communications, and party self-determination.

Factors to Consider in Choosing a Mediator

The Judicial Council of Alaska developed an easily accessed and well-informed guide for choosing a mediator.   It describes (1) the qualifications a mediator needs; (2) what makes a mediator competent; (3) the five steps it recommends in choosing a mediator and (4) additional resources.  

The Mediation Council of Illinois also developed a set of ten interview questions parties can pose to prospective mediators.  The questions ask about the mediator’s training -- both quantity and quality, whether he or she has had  any hands on mentoring, supervision or internship training, whether the mediator continues to “sharpen the saw” by attending continuing education programs and mediation-related conferences, and whether she consults regularly with other, more experienced mediators.  The questions then turn to the mediator’s level of experience:  How many mediations has the mediator done, overall and in the particular area of practice that relates to the dispute?   What percentage of the mediator’s professional life is devoted to mediation?  

It then turns to the mediator’s style or approach, which I discussed here.  Next, the interview considers the honesty, integrity and professionalism of the mediator by asking about any ethics complaints filed against him or her, whether the mediator belongs to mediation-related organizations like the Association for Conflict Resolution, the Association of Attorney-Mediators, or state mediator organizations, and whether the mediator provides pro bono mediation services as a community service.   It asks for roster listings, which reflect some measure of confidence expressed by third-parties in the mediator.  It also asks whether the mediator carries liability insurance for his or her mediation practice.

These two easily accessed tools provide a place to start your investigation.  And good mediators will not hesitate to respond to any question about his or her professional background.  But I recommend an even more thorough analysis.

Personal Qualities of a Good Mediator

My last posting, here, called Qualities of a Good Mediator and the Lessons New Mediators Learn, surveyed the thoughts of a number of conflict resolution experts about the personal qualities of effective mediators.  

Mediator's Availability and Affordability

            

Often, the well-respected mediators are booked months in advance.  Accordingly, the parties must determine if they can endure the wait.  If not, a rising star with a more open calendar will be the better choice.

Parties often pursue mediation because it tends to be less costly than litigation.   Parties can choose from no-cost or low-cost community mediation projects.  Or, they may engage private mediators who will charge $100 to $300 per hour.  Some mediators charge $1,500 to $3,000 per day, or charge according to the number of parties, the complexity of the case, or the money demand made in the complaint. They may charge cancellation fees.  They may charge pre-mediation fees related to intake or background phone calls or the review of papers or briefs.   

Mediators should not hesitate to discuss fee issues.  Most ethics codes, whether aspirational or mandatory, require the mediator to disclose all fees and costs in the mediation agreement, a retention letter, or the mediator’s opening statement. Most ethics codes also preclude contingency fees and referral fees because of their potential affect on mediator impartiality.  These codes may also instruct mediators to return any unused fees.

Mediator's Certification or Roster Status

Most courts will not allow mediators to mediate cases pending in the courts without some assurance the mediators meet basic training requirements.  Whether a mediator is certified, qualified, or rostered may offer some assurance that he or she has at least some minimal level of training.  

In Virginia, where I now live, entry level mediators (essentially small claims mediators) must have 20 hours of training, including two hours of ethics training.  They must also take a four-hour course on the Virginia judicial system.  Persons wanting to do more complex court-connected civil mediations need an additional 20 hours of training.  Family dispute mediators must have 32 additional hours of training in family systems, the social, emotional and psychological aspects of custody and visitation issues, an understanding of the grounds for divorce, parenting issues, support issues, property issues, debt and bankruptcy issues, tax issues, and the use of experts in mediation.  They must also take an 8-hour course giving them some expertise in screening for and addressing domestic abuse.  Virginiare-certifies mediators every two years after they show additional experience and training.  The court also requires observations and co-mediations with a certified mentor as part of the training program.  The requirements are summarized here.

In contrast, Missouri Supreme Court Rule 17.04 requires only 16 hours of basic training for mediators.  By comparison, I now have over 3000 hours of training.

When choosing a mediator, you should ask for the mediator’s list of training programs.  Most well-organized mediators keep an updated list of all the training programs they have attended.  You should then attempt to assess the quality of the trainers.   Training quality depends on the hands-on experiences offered the trainees and the quality of the feedback provided by the trainers.  Hal Abramson says:  “Information on the quality of training programs can be difficult to acquire by the newcomer although the information is widely known to dispute resolution professionals.  You should ask around.”  The Association for Conflict Resolution lists approved family mediation training programs by provider and state.  To be listed, the program must provide fifteen training outcomes.

You may also want to evaluate the quality of the mediator’s other professional training as a lawyer, therapist or accountant, for instance.  Does he or she have any specialized degrees.

And finally, does the mediator, in turn, train other mediators?  Is he or she well-recognized in the field for his or her training work?

I'll discuss additional factors in the selection process in my next posting. 

This article originally appeared in the St. Louis Lawyer, April 2005, reprinted in The Insurance Receiver, Summer 2005, at 11 and at http://mediate.com/articles/young16.cfm (footnotes in original are omitted in this posting).