What Kinds of Mediators are There and Which Should I Choose?
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Mediation goes back to at least ancient Greece, where village elders acted as intermediaries when citizens became involved in disputes. Its utilitarian nature has helped it become commonly practiced today.
Since its creation, mediation has developed many different styles, techniques, which have been practiced and taught to today’s mediators. One style focuses on disputing parties and transforming their relationship over the course of mediation. In these scenarios, the mediator rarely inserts their opinion on a particular outcome or makes any recommendations to the parties.
Around the time court systems began practicing mediations, conciliation, and settlement conferences, it became very common in the U.S. for long time litigating attorneys and judges to retire and become mediators and arbitrators. This change brought about a style of mediation that was much more legal and evaluative in nature. In this setting, mediations began focusing more on the merits of the “case,” so to speak, and refined strict negotiation sessions. The result is an inevitable byproduct of coming from an adversarial background for so long.
While this style certainly has its place––and is one that certainly becomes very important at times––it is a style that when used alone can foster a situation where mediation becomes more about the mediator and the parties’ attorneys and less about the parties themselves.
The most effective mediator is the one capable of blending or changing styles on the spot when it serves the mediation. If the parties really need to continue their relationship or have regular interaction post-meditation, then it makes sense to emphasize the importance of that during the process; It helps the parties to cooperate better in the creation and the execution of a final agreement. This is especially true for divorcing couples with children, businesses, or other joint obligations. Many parties also need to have a more objective conversation about their position at some point during mediation in order to help them negotiate in a more realistic manner. All styles are generally useful, but that doesn’t mean they all have to be present.
What Kind of Mediator Should I Choose?
If you are represented by an attorney, they may be more inclined to choose a judge/litigator type of mediator, partially because they may feel as though the opposing attorney will reject any other choice. If you are involved in an issue that will require you to have some kind of relationship with the party after mediation or would like the process to be as peaceful as possible, it is important you emphasize that with your attorney. When talking about the possibility of mediation, your attorney must understand your goals, your concerns, and your limits. This also includes the emphasis you want to place on legal versus personal issues between yourself and other parties, along with the type of mediator you should select based on these previously mentioned factors.
If you are not represented or not involved in litigation and want to try mediation, you certainly have more freedom––so long as you can get the other parties to agree to use a mediator of your choice. You should choose a mediator whose message resonates with you and whose fees are listed or explained clearly.
In mediation, you are supposed to be in control of your outcome, and whenever possible, you should select a mediator whose style may compliment the parties’ needs as well. This will ensure the best possible outcome for everyone.