I am regularly asked to recommend mediators for business, property and inheritance disputes. And my suggestions tend to be driven by the same considerations in every case.
So I thought I’d share my thoughts on 5 qualities I believe clients should look for in mediators, beyond the obvious (i.e. a predilection for custard creams: the staple food of any lengthy mediation).
Hopefully they will help you choose a mediator who can help unlock compromise even where there are well-drawn battle lines.
This must be the prime quality of a mediator. Parties must be confident that a mediator will not pass on confidential information, or be an unreliable part of the mediation process.
I recall one mediation where I sat down to draft a complex settlement with my opponent, only to discover that we had entirely different understandings of the deal that we thought had been reached. The mediator had not accurately relayed our offers: and had simply created a horrible muddle.
An excellent mediator will use his or her own experience in dispute resolution to coach the parties in the negotiation. This may, for example, involve testing whether a suggested offer is workable and realistic, or simply likely to be seen as provocative.
Furthermore, the best mediators will use their expertise to canvass creative solutions that may skirt round entrenched positions. The timely “I don’t know if you have thought about X?”, or “How about we work through scenario Y, just to see what happens?”: can work wonders.
A mediator who comes across as unconfident or uncommitted or clock-watching (qualities I have seen all too often) is far less valuable to the parties than one who is clear about the process, confident enough to react flexibly to unforeseen difficulties, and who keeps a pace to the negotiation even if it becomes prolonged.
I regularly recommend a mediator who is particularly talented in quickly striking a rapport with clients: through a mixture of humour, careful listening and thorough preparation.
(4) Patience and Humility
The mediators who have lost their temper with me or my clients do not get repeat business. They do not deserve it. Their role is to oil the wheels of settlement, not put grit in the cogs.
Allied to this is that I believe an excellent mediator will understand that he or she is not omniscient. This insight is not universally exhibited by lawyers. But no matter how experienced a mediator may be, he or she will not be living a dispute in the same way that the parties are. Parties should know that their autonomy is respected, and is not merely a matter of lip-service.
There are plenty of mediators in the market. For some mediation is a “filler” between other work; or represents semi-retirement.
In my experience the best mediators make time for their mediation practice: so that they are available to conduct mediations without undue delay. They do not charge unreasonable fees, and give an excellent service because they care about getting repeat business.
I hope these thoughts may help you in making your choice between mediators. And if you think there are other important qualities too then please do comment on this post. It will help me in making my choices, and, I hope, in becoming a better mediator myself.
James Fryer-Spedding is a CEDR accredited mediator. He practises at 9 St. John Street, Manchester, and is a barrister with 20 years' experience as a chancery litigator.