Mediation is a highly effective form of dispute resolution. Litigation and court proceedings can be expensive, time consuming and emotionally draining for everyone involved. They can be damaging for businesses and their employees, even for the party that wins the case. In contrast, mediation can ensure that both parties gain by agreeing their own solution, which can be more flexible and creative than a court decision.
Getting the right mediator to guide the mediation process forwards can mean the difference between success and failure. The right mediator will enable all parties involved to come to a conclusion that works for everyone. They will create a win-win situation. The wrong mediator may cause you to end up in a lengthy and costly court battle. This can only result in an outcome where one party wins, but the other loses.
I see five key factors to consider when selecting the right mediator to work with:
- Mediation objectives
You need to be clear what you want to achieve from the mediation. Are you looking for a settlement at all costs? Or are you simply gathering information to prepare for trial? Be clear with potential mediators what your goals are and ask for examples of how they have mediated on similar situations before.
- Time commitment required
Do you need a full or part time mediator? A full-time mediator can be essential in situations where undistracted commitment is required, possibly for more than a day. A part time mediator may be sufficient if they have direct current, relevant experience, but they may have other calls on their time which may interfere with their ability to work undistracted.
- Technical / subject matter experience
Depending on the nature of the dispute, you may need to look for a mediator with specific expertise on the subject matter. This might be experience of the particular industry, such as retail, or the skill area, such as engineering. In other cases, general experience as a mediator may be more beneficial, if you are less sure about the direction the mediation may take. Also think about whether you need a legal or non-legal mediator. There is a big debate in the mediation world as to which is ‘better’. My view is that it depends on the subject matter of the dispute and there will be cases where either is preferable. For example a complicated title / boundary / access dispute is likely to be best dealt with by a lawyer, and possibly in conjunction with a surveyor
- Mediation skills
Consider the types of skills you are looking for in a Mediator. Do you want someone who will take an evaluative and proactive or more facilitative approach? Each requires a different set of skills. Listening skills are vital, as well as an ability to be proactive and think outside the box. A top mediator is tenacious but patient and has a proven track record of success.
- Co-mediation options
Co-mediation is where multiple mediators (often two) work together to help resolve a dispute. It can be particularly beneficial in multi-party cases with complex issues to be resolved. It can also ensure that both parties feel equally and neutrally heard in the mediation process. Co-mediation allows you to select mediators with complementary skills, for example combining the skills of an industry specialist with an experienced generalist mediator.
Or a property expert mediator could work alongside a surveyor, valuer or engineer expert mediator. Whichever you select, both mediators should be experienced in co-mediation and agree to share the fee and the tasks and be happy to work together as a team. If mediators can’t collaborate there’s no hope!
Once you have considered all these aspects compile a short list of three potential mediators. Review their profiles for evidence of their experience, skills and success. Check out what panels they are on, as well as evaluating their case studies and references. Use online tools such as Clerksroom – their national league table of Elite Mediators is based on client feedback, creating a good indicator of success. Take the time to consider all the factors involved and decide which mediator is best for each particular case.
To find out more about my mediation services please call 07776 141 717 or email roger@rogerlevittmediation.co.uk. Check out my website at www.rogerlevittmediation.co.uk. As an experienced property solicitor, of over 33 years I am fully versed in the legal framework of property and business disputes, and passionate that mediation provides a fresh approach, with a high success rate.
