Finding a Mediator

In selecting an arbitrator, parties look for someone with expertise in the nature of the dispute.  In mediation this is less important, as the mediator will not be making a determination of the dispute and therefore does not need to be an expert in the subject matter.

Of more importance is the “style” of the mediator. It is generally said that the mediator is the facilitator of the dispute resolution process. Or that the mediator needs to mange the process of the dispute to bring the parties to resolution.  Here what is significant is the way the mediator does that.

At one end of the spectrum is the “evaluative” mediator whose approach is analytical and advisory. This mediator reviews the issues in dispute, identifies the key factual and evidentiary matters and gives the parties advice on the most likely outcome. Often this role is played by ex judges who are retained as mediators because of their recent position as a serving justice of a superior court exercising jurisdiction over precisely the type of commercial problem being considered.

In the middle is the facilitative or settlement orientated mediator who is focussed on identifying common ground and resolving the extent issues, without troubling themselves too much about the underlying emotional context for the disputes.  This mediator trades off interests and marks of issues as they move the parties to an agreement that they can both “live with”. This is often also characterised as an agreement that no one party wants.

At the other end of the spectrum is the “experiential” or transformative mediator. This person will focus on the totality of the dispute; the identified problems, and the people involved.  Their experience is that it is often the people who cause the problems. By bringing the people to a greater realisation of their limited frame of reference they are often able to “expand the pie” of options for resolution, so that everyone can win something that they want.  Often a party’s preferences for an outcome are not directly expressed but emerge from the nature of their discussions and the interactions between the parties.  The experiential mediator therefore wants to allow the parties free rein to express themselves and there views about past actions. They understand that mediation there is no fixed or single “truth” that explains how the situate arose nor a single outcome that can be recommended.