This guide was developed (by
the Alaska State Judicial Council) under a grant (#SJI-94-03E-H-284)
from the State Justice Institute. The points of view expressed
are those of the authors and do not necessarily represent the
official position or policies of the State Justice Institute (or
the Department of the Navy). The Judicial Council would like to
express its appreciation to the many people who contributed to
this project. Thanks to all who gave so freely of their expertise
and time, and exhibited such support and enthusiasm for the project.
You also may wish to refer to a Directory of Mediators in Alaska
published by the Alaska Court System.
To make an informed choice of
a mediator; the consumer must have information and the ability
to evaluate that information. This guide begins the educational
process by presenting a framework for understanding mediator competence.
The information is based on research presented at the 1993 National
Symposium on Court-Connected Dispute Resolution Research sponsored
by the State Justice Institute and the National Center for State
Courts, the ongoing work of the Test Design Project, the work
of alternate dispute resolution policy makers, and the experience
of mediators and mediation program directors nationwide. We anticipate
that the guide will need to be updated as our knowledge grows.
Please send us an e-mail message
with comments, suggestions or requests for
written copies of this guide.
Purpose of This
Brochure
This guide is for anyone looking
for a mediator. It will be especially useful to lawyers or other
professionals advising their clients, court systems and mediation
programs that provide information to consumers, judges who refer
litigants to mediation, and people who have been referred by the
court to mediation and who must choose their own mediator.
This guide does not explain mediation
or alternative dispute resolution (ADR) in detail, although a
consumer needs at least a basic understanding of mediation to
profit fully from this guide. To learn about mediation, consult
books, articles and pamphlets at your local library, community
mediation center, courthouse, bookstore, mediator's office, or
mediation association.
Mediation is a conflict resolution
process in which one or more impartial persons intervene in a
conflict with the disputants' consent and help them negotiate
a mutually acceptable agreement. The mediator does not take sides
or decide how the dispute should be resolved.
What Qualifications
Does a Mediator Need?
Qualifications refer to the amount
and type of training, education and experience possessed by a
mediator. In some states, courts or legislatures impose training
or experience standards on mediators who practice in state-or
court-funded mediation programs. In most states, including Alaska,
a person can offer private mediation services without taking a
class, passing a test or having a special license or certification.
In reality, however, many private mediators, and most of those
who work for or are associated with mediation organizations and
programs, have some training or experience.
Most independent mediation programs
impose their own training or experience standards on mediators.
For example, community mediation centers often require their volunteers
to complete a certain amount of mediation training before handling
cases.
Some national and local mediation
membership organizations set training and experience requirements
and ethical standards for their practicing members (refer to the
resources section at the end of this brochure for more information).
One national non-profit mediator organization, the Academy of
Family Mediators, is working to develop a voluntary performance-based
certification program.
Many mediation-referral services
impose training, experience or other requirements on mediators
who wish to be included on their rosters. For example, the American
Arbitration Association requires mediators listed on its mediation
panel to complete an AAA training course, receive recommendations
from the trainers, and successfully complete an apprenticeship.
In Anchorage, the Alaska Dispute Settlement Association (ADSA)
requires all mediators listed on their referral line to provide
certain information to ADSA and the potential client, including
an explanation of the standards of professional practice or ethical
conduct that the mediator uses.
Certification explicitly recognizes
that a person has completed a specific level of education or training.
In some cases, it recognizes that a person has achieved a particular
level of skill in performing certain functions. Public, private,
professional or educational bodies can certify. If a public body
has certified a professional's abilities, the person may then
be permitted to practice a profession or use a title.
What Makes a Competent
Mediator?
There is no universal answer
to this question. No particular type or amount of education or
job experience has been shown to predict success as a mediator.
Successful mediators come from many different backgrounds.
Competence depends partly on
the context of the dispute and the parties' expectations. It also
depends on whether the mediator has the right mix of acquired
skills, training, education, experience and natural abilities
to help resolve the specific dispute. Important skills and abilities
include neutrality, ability to communicate, ability to listen
and understand, and ability to define and clarify issues.
Five Steps to Choosing
a Qualified Mediator
Because no easy formula can predict
mediator competence, the consumer must do some groundwork before
selecting a mediator. First, you must understand the mediation
process. After you understand the basics, you can use the following
process to choose a mediator:
Five Steps to Choosing a Mediator
1. Decide what you want from
mediation
2. Get a list of mediators
3. Look over mediator's written
qualifications
4. Interview mediators
5. Evaluate information and
make decision
These steps are described on
the next pages. Remember during your search that a mediator should
remain neutral and treat both parties with equal fairness and
respect.
1. Decide What You Want
from Mediation
Think about your goals for the
session. Do you want a mediator who suggests options in order
to help move the parties towards agreement? Or, do you want a
mediator who resists offering opinions so the parties feel responsible
for their agreement? Think about past attempts at negotiation
and problems with those attempts. What are your choices if mediation
does not work?
Think about your abilities. What
are your strengths and weaknesses as a negotiator? What are the
other party's strengths and weaknesses? What are your emotional
limitations? Do you expect the mediator to help you stand your
ground if the other person negotiates better than you or has more
"power?" Thinking about these issues is especially important
if there is a power imbalance between you and the other party.
If there has been abuse and or violence between you and the other
party, please read the Domestic Abuse section.
Think about the dispute and the
context in which you must resolve it. What is the time frame?
Is this a commercial dispute between experienced insurance company
representatives, or is it a divorce involving an emotional child
custody decision? The approach or model that commercial disputants
might prefer may differ greatly from the one preferred by a mother
and father.
Consider your budget. How much
you can spend might limit your choice of mediator or mediation
program.
Many mediators and dispute resolution
firms or services can help you understand what services would
be best for your dispute. Some will contact the other party to
the dispute to introduce the concept of mediation.
2. Compile a List of Names.
You can get a list of mediators
from several sources.
Word of Mouth. Ask a friend,
your attorney, your therapist, or another professional. Describe
your case to a mediator and ask, "Other than yourself, who
are the most skilled mediators in this kind of case?" Talk
to people who have been in a mediation with the mediator (you
can ask the mediator for names of clients). What was their case
about and what were their impressions of the mediator?
Written Lists. Check local listings
in the Yellow Pages. The Alaska Court System publishes a Directory
of Mediators in Alaska. The Alaska state law library has copies
of both. Martindale-Hubbell, available in the law library, publishes
a national Dispute Resolution Directory containing the names of
some 60,000 service providers. Rural consumers can consult the
Alaska Judicial Council's directory of organizations that resolve
disputes in rural areas (many of these are tribal courts or councils).
Many local mediation organizations maintain directories of member-mediators.
Referral Services. The Alaska
Dispute Settlement Association maintains a statewide referral
service (Anchorage number) and a written directory of members.
Many national mediator membership organizations and trade organizations
keep lists of practitioner members and offer referral services
(some of these organizations are listed at the end of this pamphlet).
Some may charge for the referral services.
(Note: The Department of the
Navy has a mediator program that supplies mediators for employment/labor/personnel
disputes. The program will soon be expanded to cover procurement
and environmental disputes. There is also a Department of Defense
and a federal government shared neutrals program.)
3. Evaluate Written Materials.
Call or write several mediators
on your list and ask them to send you their promotional materials,
resume, references and a sample of their written work. These materials
should cover most of the following topics.
Mediation Training. How was the
mediator trained? Some mediators receive formal classroom-style
training. Some participate in apprenticeships or in mentoring
programs. While training alone does not guarantee a competent
mediator, most professional mediators have had some type of formal
training. How many hours of training has this mediator had? How
recent was the training?
Experience. Evaluate the mediator's
type and amount of experience (number of years of mediation, number
of mediations conducted, types of mediations conducted). How many
cases similar to yours has the mediator handled? A mediator's
experience is particularly important if he or she has limited
formal training.
Written Work. Some mediators
will write up notes about agreements or even draft agreements
for the parties. Other mediators do not prepare written agreements
or contracts. If your mediator will prepare written work, you
may want to review a sample. Samples could include letters, articles
or promotional materials. Any sample of the mediator's written
work should be clear, well organized, and use neutral language.
Agreements or contracts should have detailed information about
all items upon which the parties have agreed.
Orientation Session. Some mediators
offer an introductory or orientation session after which the parties
decide whether they wish to continue. Is it offered at no cost,
reduced cost, or otherwise?
Cost. Understand the provider's
fee structure. Does the mediator charge by the hour or the day?
How much per hour/day?]
Other Considerations. Find out
whether the mediator carries professional liability insurance
which specifically covers mediation. Is the mediator certified,
and if so by whom? While certification usually shows the mediator
has completed a specific amount of training or education, training
and education do not guarantee competence.
Does the mediator belong to a
national or local mediation organization, and is the mediator
a practicing or general member? Cost may prevent some competent
mediators from joining organizations, becoming certified, or carrying
liability insurance.
4. Interview the Mediators.
Talk to the mediators in person
or by phone. During the interview, observe the mediator's interpersonal
and professional skills. Qualities often found in effective mediators
include neutrality, emotional stability and maturity, integrity,
and sensitivity. Look also for good interviewing skills, verbal
and nonverbal communication, ability to listen, ability to define
and clarify issues, problem-solving ability, and organization.
During the conversation, you
also may want to ask questions about matters covered in the written
materials and other topics. Some topics to discuss in the interview
include:
Training, Knowledge and Experience
Ask the mediator, "How has
your education and experience prepared you to help us work out
this specific dispute?" If the mediator had formal training,
did it include role play and observations of skilled mediators?
While training and education do not guarantee competence, training
is most effective when it includes practice-oriented segments
such as role play and observation.
Ask "Do you participate
in continuing education, on-going supervision, or consultation?"
Many professional mediation organizations encourage or require
their members to participate in ongoing education or other professional
development.
People often ask whether a mediator
should be an expert in the subject of the dispute. For example,
should the mediator in a commercial mediation be an expert on
industry standards and practices? The answer depends on the type
of dispute, the mediation program (for example, court-referred
or administrative agency), and the parties' expectations and needs.
Ask the mediator if he or she thinks subject-matter expertise
is necessary for this dispute, and why or why not.
In some cases, the parties may
prefer a mediator with no special knowledge of the subject. Benefits
of this approach include avoiding a mediator's preconceived notions
of what a settlement should look like and letting the parties
come up with unique or creative alternatives.
In other cases, for example where
the subject of the dispute is highly technical or complex, a mediator
who comes to the table with some substantive knowledge could help
the parties focus on the key issues in the dispute. Or, parties
may want someone who understands a cultural issue or other context
of the dispute.
Style.
Ask "What values and goals
do you emphasize in your practice?" For example, does the
mediator encourage the parties to communicate directly with each
other, or does he or she control the interchanges? The mediator
should be able to describe his or her style of mediation and his
or her role in the mediation process. Remember that different
mediators may practice their craft in different ways, although
some mediators can change their style to suit the parties' specific
needs.
Another stylistic difference
is the use of caucus. A caucus is a meeting between one of the
parties and the mediator without the other party present. Some
mediators caucus frequently during the mediation, while others
seldom or never use this procedure. Ask the mediator whether he
or she uses caucuses, and if so, when.
If the mediator works for or
is associated with a mediation program or organization, ask what
values and goals the program emphasizes. For example, the style
or requirements of a mediator who practices in a court program
designed to reduce court caseloads may differ from the style of
someone whose practice does not involve the same time pressure.
Ethics.
Ask "Which ethical standards
will you follow?" (You may ask for a copy of the standards).
All mediators should be able to show or explain their ethical
standards (sometimes called a code of conduct) to you. If the
mediator is a lawyer or other professional, ask what parts of
the professional code of ethics will apply to the mediator's services.
Ask the mediator, "Do you have a prior relationship with
any of the parties or their attorneys?" The mediator should
reveal any prior relationship or personal bias which would affect
his or her performance, and any financial interest that may affect
the case.
Standards of conduct (Ethics).
Standards of conduct do not regulate who may practice, but rather
create a general framework for the practice of mediation. National
mediator organizations have adopted voluntary standards of conduct.
The resources section at the end of this brochure lists some of
the national organizations that have adopted or are considering
adopting standards of conduct for their practitioner members.
Confidentiality.
The mediator should explain the
degree of confidentiality of the process. The mediator may have
a written confidentiality agreement for you and the other party
to read and sign. If the mediation has been ordered by the court,
ask the mediator whether he or she will report back to the court
at the conclusion of the mediation. How much will the mediator
say about what happened during mediation? How much of what you
say will the mediator report to the other disputants? Does the
confidentiality agreement affect what the disputants can reveal
about what was said? If the parties' attorneys are not present
during the mediation, will the mediator report back to them, and
if so, what will the mediator say? The mediator should be able
to explain these things to you.
Logistics.
Who will arrange meeting times
and locations, prepare agendas, etc.? Will the mediator prepare
a written agreement or memorandum if the parties reach a resolution?
What role do the parties' lawyers or therapists play in the mediation?
Does the mediator work in teams or alone?
Cost.
Ask "How would you estimate
costs for this case?; How can we keep costs down?" Are there
any other charges associated with the mediation? Does the mediator
perform any pro bono (free) services or work on a sliding fee
scale? If more than one mediator attends the session, must the
parties pay for both? Does the mediator charge separately for
mediation preparation time and the actual mediation?
Special Considerations if
There has Been Domestic Abuse Between You and the
Other Party.
If there has been domestic abuse
or violence between you and the other party, you should understand
how it can affect the safety and fairness of the mediation process.
Talk to your lawyer, a domestic violence counselor, women's' advocate,
or other professional who works with victims of domestic abuse
before making the decision to mediate.
All family mediators should be
knowledgeable and skilled in the screening and referral of cases
involving abusive relationships. They should be able to explain
the potential risks and benefits of mediation when control, abuse,
and violence issues exist. Any mediator who handles such cases
should have special training in domestic violence issues and should
offer special techniques and procedures to minimize risk and maximize
safety of all participants.
If you decide to try mediation,
it is important to let the mediator know about the abuse or violence.
Some ways you can tell the mediator include asking your lawyer
to tell the mediator, or telling the mediator yourself. You can
tell the mediator yourself in the initial telephone call, or when
filling out any written questionnaires. If there is an active
restraining order, make sure the mediator knows about it before
the first session.
Ask what domestic violence training
the mediator has had and if the mediator has worked with similar
cases. Ask whether or not the mediator believes your case is suitable
for mediation and why. Ask how the mediation process can be modified
to make it safer and more fair. Can the mediation be done by telephone
or in separate sessions ("shuttle mediation")? Can a
support person (domestic violence advocate or your attorney) be
present during the mediation? If your case is not suitable for
mediation, what are your alternatives? Ask for referrals to other
resources, such as a local domestic violence counselor.
5. Evaluate Information
and Make Decision.
During the interviews, you probably
observed the mediators' skills and abilities at several important
tasks. These tasks, which mediators perform in almost all mediations,
include:
gathering background information,
communicating with the parties
and helping the parties communicate,
referring the parties to other
people or programs where appropriate,
analyzing information,
helping the parties agree,
managing cases, and
documenting information.
Ask yourself which of the mediators
best demonstrated these skills. Did the mediator understand your
problem? Understand your questions and answer them clearly? If
the other party was present, did the mediator constructively manage
any expressions of anger or tension? Did the mediator convey respect
and neutrality? Did you trust the mediator? Did the mediator refer
you to other helpful sources of information? Understand what was
important to you? Pick up on an aspect of the conflict that you
were not completely aware of yourself? Did the mediator ask questions
to find out whether mediation is preferable or appropriate? Understand
the scope and intensity of the case? Of course, not every orientation
interview permits the mediator to demonstrate all these skills,
and every mediator has relative strengths and weaknesses. But
you should be satisfied that the mediator can perform these tasks
for you before beginning.
Review the other questions on
this checklist. Make sure that the mediator's cost and availability
coincide with your resources and timeframe. The other parties
to the mediation must agree to work with this person, too. You
may want to suggest two or three acceptable mediators so that
all parties can agree on at least one.
Finally, consider evaluations
of others who have used this mediator or your own previous experience
with this mediator. If applicable, consider the goals and procedures
of any organization with which the mediator is associated.
Conclusion
The increasing use of mediation
has outpaced knowledge about how to measure mediator competence.
You can choose a qualified mediator by thinking about what you
expect, gathering information about mediators, and evaluating
that information using the information in this guide.
More Information/Resources
Many mediation organizations
exist. This is not a definitive list, but merely a sample of some
that offer consumer services.
Department of the Navy call or
write: Deputy Dispute Resolution Specialist, Office
of the General Counsel, 720 Kennon Stree SE, Room 214, Washington, DC 20374-5012,
(202) 685-7000,
Fax: (202) 685-6867,
email adr@mail.navy.mil
American Bar Association Section
on Alternative Dispute Resolution: Sells books, pamphlets and
videos about alternative dispute resolution and mediation; publishes
quarterly magazine, and offers general information. Call (202)
331-2258 or write to: 1800 M St., N.W.; 2nd Floor, South Lobby;
Washington, D.C. 20036.
Academy of Family Mediators:
A mediator membership organization. Practitioner membership entitles
the mediator to listing in the Academy's National Referral Roster.
To qualify for practitioner member status, the applicant must
(1) complete 60 hours of mediation training as described below,
(2) have at least 100 hours of face-to-face mediation experience
in at least 10 mediation cases; and (3) submit six sample memoranda,
case reports or other documentation from the required ten mediation
cases, and maintain 20 hours of continuing education every two
years. The sixty hours of training must include no less than 30
hours of an integrated generic family mediation training. This
integrated mediation training must include the following core
areas and at least six hours of role playing: information gathering
skills and knowledge, relationship skills and knowledge, communication
skills and knowledge, problem-solving skills and knowledge, ethical
decision-making values skills and knowledge, interaction and conflict
management skills and knowledge, professional skills and knowledge,
an introduction to conflict resolution theory, family systems
and development, domestic violence issues and legal context (substantive
knowledge base), and at least two hours of training in domestic
violence issues. Call (612) 525-8670 or write to: 1500 S. Hwy
100, Suite 355; Golden Valley, MN. 55416-1593.
Association of Family and Conciliation
Courts: an interdisciplinary association of judges, lawyers, mediators
and mental health professionals dedicated to the development and
improvement of the practices and procedures of court-connected
services as a complement to the judicial process. Members must
subscribe to the purposes of the Association. Call (608) 251-4001
or write to: 329 W. Wilson St; Madison, WI 53703.
CPR Institute for Dispute Resolution:
A membership-based nonprofit corporation with a variety of educational
and information functions. Offers neutrals for public policy disputes.
Also offers many publications, including a Model Mediation Procedure.
Call (212) 949-6490 or write to: 366 Madison, New York, N.Y. 10017.
National Association for Community
Mediation: An organization of community mediation programs and
volunteer mediators which supports and promotes community-based
mediation programs. The NACM will maintain a national directory
and database and develop financial resources. Requests for information
handled by NIDR staff (see below).
National Institute for Dispute
Resolution (NIDR): established in 1983 by five foundations and
corporations to encourage the growth and development of dispute
resolution, NIDR makes grants devoted solely to conflict resolution
and provides a source of innovation, information, and technical
assistance for people who seek ways to improve the ways disputes
are resolved. In 1992, the National Institute for Dispute Resolution
published its Interim Guidelines for Selecting Mediators. The
Guidelines, designed to help program administrators evaluate staff
mediators and target training needs, was based on work done by
the Test Design Project. Call (202) 466-4764 or write to: 1726
M St. N.W., Ste 500; Washington, D.C. 20036-4502.
San Diego Mediation Center: a
non-profit, public service organization, which provides mediation
and other dispute resolution services and training. It was established
in 1982 by the San Diego Law Center, a program of the University
of San Diego Law School and the San Diego County Bar Association.
The Center, in conjunction with representatives of the ADR community
of San Diego, has developed a performance based mediator credentialing
program. The instrument used to assess performance is designed
as a generic evaluation of specific behaviors, measuring both
the ability to facilitate a process, and specific skills and techniques.
Call (619) 295-0203 or write to: 2150 W. Washington St. #112;
San Diego, CA 92110.
The Society of Professionals
in Dispute Resolution (SPIDR): a non-profit organization promoting
the use of alternative dispute resolution throughout the United
States and other countries. SPIDR has issued two reports on mediator
qualifications. Both draw on the observations of practitioners
and consumers, the policy and personal goals of the SPIDR membership,
and research attempting to quantify the combination of skills,
training, education, experience and other attributes in a good
mediator. Call (202) 783-7277 or write to: 815 15th St; N.W.,
Suite 530, Washington, D.C. 2005.
Standards of Practice
NATIONAL:
American Bar Association (ABA):
Standards of Practice for Lawyer Mediators in Family Disputes
(adopted 1984).
AAA, ABA & SPIDR: Standards
of Practice for Mediators.
SPIDR: Ethical Standards of Professional
Responsibility for the Society of Professionals in Dispute Resolution
(adopted June 1986, readopted June 1991).
Academy of Family Mediators:
Standards of Practice for Divorce and Family Mediation (also subscribed
to by the Association of Family and Conciliation Courts).
MORE INFORMATION:
The Ohio Commission on Dispute
Resolution and Conflict Management and the Oregon Dispute Resolution
Commission offer consumer's guides to selecting third parties
to help resolve public conflicts. For public policy disputes,
different considerations in choice of mediator may apply than
the very general ones discussed here.
INFORMATION ABOUT NEGOTIATION
STRATEGIES:
Many books exist. Try Getting
to Yes by Roger Fisher and William Ury and Getting Past
No by William Ury.
RESEARCH AND ACADEMIC WRITING
ON MEDIATOR QUALIFICATION AND COMPETENCE:
See the list of references cited
in the Test Design Project's most recent paper on performance-based
assessment of mediators. The Test Design Project's work is published
by NIDR (address above).
Quick Reference: Select
a Mediator
Checklist 1 What Do You Want?
1. What are your goals?
2. What mediation approach do
you prefer?
3. Assess your abilities: strengths,
weaknesses
4. What is your time-frame?
5. What is your budget?
Checklist 2: Get Names
1. Ask people and professionals
whom you know
2. Look at directories
3. Call referral services (ask
whether they charge to refer you to a
mediator)
Checklist 3: Evaluate Written
Materials
1. Fees: Hourly? Daily? How much?
2. Education: How much? What?
How recent?
3. Experience: What kinds of
disputes? How many mediations? Areas of
specialization?
4. Written (if available): Understandable?
Complete? Concise?
5. Insurance: Yes? What kind?
6. Professional memberships,
certifications, adherence to ethical
standards?
Checklist 4: Interview Mediator
1. What ethical standards apply?
2. Confidentiality?
3. What approach to mediation?
4. More about training and experience?
5. Logistics (meetings, written
agreements)?
6. How much will this cost?
7. Domestic abuse concerns?
Checklist 5: Evaluate
1. Evaluate the mediator's skills
and abilities against the tasks listed
above.
2. Did the mediator understand
you, listen well, act neutral, understand
the problem, convey respect,
analyze well?
3. Can you afford the services?
4. Can the mediator work with
your time frame?
5. Will the other parties agree
to the mediator?
1-202-685-6990