23 May 2022 by and Employment Law Alert

A game of chance? How to select the right mediator

With the massive backlog currently being experienced at the Commission for Conciliation, Mediation and Arbitration, bargaining councils and the Labour Courts as a result of the lockdowns caused by the COVID-19 pandemic, now, more than ever, mediation is a process that should be front of mind. However, the appointment of an appropriate mediator is not a game of chance and should not be determined on a whim.

For reasons set out below, in our experience the consideration of an appropriate mediator is as important as the preparation for the mediation itself and, yes, mediation requires preparation. It should not be a random choice even where a dispute resolution agency or a mediation panel provides a list of potential mediators for the parties to consider. In Kenya, for instance, a mediation panel exists that is supervised by the courts and which provides a list of mediators for parties to consider when they elect to use mediation to resolve their dispute.

When used appropriately, mediation is an effective process for resolving conflict between disputing parties. At its core is a focus on the parties reaching an agreement of their choice through a facilitated negotiation. The mediator facilitates the negotiation process by applying a range of process, relationship, and negotiation skills. The mediator performs their role on an off-the-record basis and often in separate meetings with each of the parties. The mediator serves as a conduit between the negotiating parties. However, mediators are unique and are not necessarily suited to every dispute. The selection of the appropriate mediator for a dispute is a critical early consideration.

The parties must agree on the appointment of a mediator very soon after agreeing to use mediation as a process. This choice is ideally reached with guidance from lawyers, dispute resolution agencies, online research, or historical experience with the mediator. Quite often, a mediator is simply appointed based on someone’s passing word, availability or price. Parties need to be more astute in their selection of a mediator where they seek to extract value from the process. In fact, the parties pay for this privilege and must use it wisely. This decision is not an easy one and below we seek to provide some guidance on how to go about it.

Mediator’s training

There are numerous mediation courses on the market and the accreditation offered varies. A starting point would be to research the credibility of the mediator’s training qualification and its recognition in the jurisdiction/s in which the dispute exists. The training qualification of a mediator does not, however, necessarily make a person “the” mediator for a particular process. A reliable mediator qualification is certainly the bare minimum that a party must seek. However, there are mediators who perform excellently and do not have any formal qualifications. They have the benefit of experience and, importantly, reputation. This may also mean that such a mediator is easily trusted by both parties.

Experience

Experience is a key driver of a mediator’s success as it allows the mediator to apply their tools, skills and knowledge in a wide variety of matters. With more practice the mediator’s knowledge and skills evolve and their tools are sharpened. A track record of mediation is a useful basis to evaluate the extent and type of experience. It will provide guidance to the parties. Parties should consider interviewing prospective mediators before making an appointment so that they can consider the factors raised here and also consider personality, knowledge and rapport. Having said this, many new mediators do exceptionally well when provided with an opportunity. This encourages growth and diversity in the pool of mediators. At times, experienced mediators can be paired up with junior mediators to guide and advise them. Parties could also use new mediators in smaller matters first.

Specialisation

There are special areas of law or facts that require a mediator to have specialised knowledge. This allows the mediator to receive information, understand and respond much quicker than a mediator who needs to be “educated”. Parties often find comfort in knowing that the mediator is an expert in the field of the dispute and may be inclined to select a mediator solely on this basis. Lawyers may have greater knowledge of the reputation and legal acumen of lawyers in specialised fields who are now mediating. Having said this, an experienced mediator is, however, potentially able to handle any dispute as the skills, tools and knowledge employed in the mediation process are generally the same. In addition, a mediator’s lack of detailed legal knowledge on the topic in dispute may prevent the mediator from being overly evaluative of the merits. As such, if the parties seek a more facilitative mediator, they may want to select a mediator who is not a specialist in the relevant field of law. To avoid potential prejudice, the level of representation during a mediation may inform the level of specialist knowledge that the mediator must have.

Reputation

Reputation is earned and built over a long period of time. The reputation of the mediator is important to consider as it will provide a sense of ethical conduct, trustworthiness, and comfort. At times, mediators claim a “status” through effective marketing or their personalities and this may falsely guide parties. Parties must judge the reputation of the mediator based on sound factors and not simply what is portrayed on the surface. Lawyers are generally able to provide guidance in this regard.

Associations or panels

At times, referrals to mediators happen through associations or panels that are managed and owned by dispute resolution agencies. These associations and panels play a crucial role in ensuring that mediators obtain work. Parties rely on the credibility of the associations and panels that are managed by dispute resolution agencies or organisations. These association or panels are tasked with advising, guiding and determining which mediator is appointed to a dispute. Where parties outsource the choice of the mediator it is imperative that the make-up, practices and ethics of the dispute resolution agency are evaluated carefully. It is advisable for the parties to work with the dispute resolution agency in considering all the factors prior to selecting a mediator.

Arbitrary factors

Parties may consider the ethnicity, race, religion, age, sexual orientation and similar arbitrary factors to determine whether a mediator should be appointed to a dispute. At times these factors play a greater role then the other substantive factors in determining whether a mediator will be appointed. The parties’ bias, implicit or otherwise, influence the selection of the mediator. This method of selection poses risks to the parties, especially when selecting from a pool of random mediators. However, the parties may use some or all of these arbitrary factors in selecting a mediator from pool of equally competent mediators. In such an instance, the application of the arbitrary factors may enhance the impression in the minds of the parties that there were will be greater fairness.

Practical factors

The parties’ selection of a mediator may be constrained as a consequence of the location, price or availability of the mediator. These practical factors are unavoidable and must be considered when scheduling the mediation. Ideally, a mediator should not be appointed simply due to these factors alone. Parties must rather conduct a complete assessment of the mediator and make a decision based on more credible factors. It is better to select the right mediator overall than the cheapest and fastest available mediator.

A joint interview by both parties conducted with the mediator could give them a sense of the mediator’s personality, demeanour, manner of communication and responses to a wider range of questions. The rapport between the mediator and the parties is an important factor in the success of the mediation.

Overall, the selection of a mediator is an important decision that the parties need to make with careful consideration of a range of factors. Mediation provides an opportunity for all parties to find a resolution to a dispute. It does take time and cost money, but the right mediator adds tremendous value to the parties. Parties must take advice from their lawyers and seek the expertise of professional dispute resolution agencies when selecting a mediator. 

We include a simple checklist below that will assist you in asking the right questions:

  1. Does the mediator have suitable qualifications and accreditation?
  2. Do I need a specialist mediator in the subject of the dispute? Be it legal, business, technical, or industry expertise.
  3. Do I need an experienced mediator and to what level? 0–5 years (junior), 5–10 years (moderate) or 10 years + (senior)?
  4. What is the reputation of the mediator? What do colleagues say? What do clients say? What does my adviser say? What references do I have? What does a general internet search raise?
  5. Does the mediator belong to an association or panel and what advantages do I get from working through the agent?
  6. Will any arbitrary factors play a role in the acceptance or credibility of the mediator in the minds of the parties? Factors such as age, race and gender could be considered.
  7. Does the mediator meet the practical considerations for the process? Including price, availability, location and transportation.
  8. Do I need to interview the mediator to gather more insight?

Mediation is a valuable tool in effectively resolving disputes. It is also becoming part of the civil court process and it is worthwhile for those involved in disputes to become acquainted with how to successfully use this tool with the aim of at least achieving an early resolution.

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