What does a mediator do?
There are a number of ways to describe what a mediator does. For example, one could say that a mediator facilitates a process by which people who disagree with each other can resolve their differences without having to go to court. A more specific definition might state that a mediator helps the parties to identify and clarify the issues in dispute, identify the needs and interests that underlay the dispute, generate options for resolving the dispute that are based on the needs and interests that the parties have expressed, and craft an agreement by which the parties pledge to abide.
An essential mediator function is to help the parties to uncover and discuss why they hold particular positions regarding the dispute. The answers to the question “why” also describe what each person needs. When the parties understand what each person needs, they are often able to figure out ways to get those needs met. When the needs are met, the positions are no longer necessary and the dispute is resolved. It usually is just that simple.
The process can become complicated by the feelings that each person brings to the process. When people are angry, they often cannot hear each other – or themselves, for that matter. A person who feels hurt, disrespected, or unappreciated will find it very hard to collaborate with the person that he or she feels has caused the insult. This is when bringing in a mediator makes a lot of sense.
A skilled mediator focuses tremendous energy toward helping the parties to hear themselves, and each other, even when they are angry. When those feelings are addressed, the parties can begin to focus on the distributive issues – the matters that they must agree on in order to resolve the dispute.
How are mediators trained?
In the United States, mediation as a profession is a relatively young field. The past 10 – 15 years have seen tremendous growth in the number of undergraduate and graduate degree programs geared specifically to training mediators. However, most mediators practicing today were either trained in individual classes as college undergraduates or in graduate school or received their training through a Community Mediation Center or a professional organization.
How do I know whether my mediator is qualified?
Being sure that your mediator is qualified might take a bit of research on your part. Currently, there are no state or federal laws that govern licensing for mediators. As such, mediators are not required to be licensed.
One way to check a mediator’s qualifications is to see whether the mediator is certified. Many professional mediation organizations do offer certification but the requirements vary by organization. Courts also set standards for mediators to achieve in order to qualify as mediators for court annexed mediation programs. These standards can also vary by jurisdiction.
However, since certification is a relatively new phenomenon, that your mediator is not certified is not an immediate sign that the mediator is not qualified to address your concerns. Many mediators practice for years without ever seeking certification. So it is useful to look for other indicators.
One important indicator is the mediator’s reputation in the field. Has the mediator published articles or appeared as a speaker at conferences or seminars? Another indicator is how much training the mediator has. Check the mediator’s website for information about how and when the mediator was trained. If you interview a mediator, ask whether the mediator attends continuing education classes in order to stay up to date with developments in the field and to refresh his or her skills.
The most important indicator, however, is how you feel about the mediator. Just because someone has a wall covered with plaques and certificates does not mean that he or she is the right practitioner for you. The common touch cannot be picked up in books and what works for some clients does not work for others. Look out for my upcoming blog about how to choose a mediator for more information about various mediator styles and theoretical schools of thought. This information should also help you to decide which mediator is best for you.
Isn’t this the same as therapy?
While many mediators are also trained therapists, mediation is not the same as therapy. Many people who have experienced mediation do say that it was a therapeutic experience. A responsible mediator might suggest therapy as an option should it be appropriate to do so.
What about my legal rights?
Mediation is an informal process. Going to mediation is not the same as consulting a lawyer. A mediator might point out legal issues as they arise but cannot and will not give legal advice. A mediator might suggest consulting a lawyer if it seems that doing so would be in your best interests. You, yourself, can decide to consult a lawyer at any time.
A mediator also has a duty not to mediate a case where it seems that the outcome would be unconscionable. A mediator is trained to facilitate a process whereby the parties are placed on as level a playing field as possible. However, mediators are sensitive to situations where differences in power and access to resources are so great that the parties cannot be said to be mediating on a level ground. In that instance the mediator might feel duty-bound to end the mediation and might recommend that the parties seek legal representation.
It is wise to keep in mind that going to mediation does not stop the clock on filing a lawsuit. Most non-criminal matters require you to file a lawsuit within six years of the incident that occurred. Other types of legal issues like medical malpractice and construction matters, to cite two examples, have different time frames. On the other hand, going to mediation does not cancel out the option of going to court. If at any time it seems that the mediation process is not working for you, you are free to exercise your right to sue.
It is possible to mediate after the lawsuit has been filed. In that case, the clock has been stopped but litigation can be suspended while the parties work to resolve the issues through mediation.
What about Confidentiality?
Confidentiality is a very important benefit of mediation. Mediators are trained to keep the matters they handle confidential. Many states have laws that govern what happens to the information that is shared during mediation. Some of these laws prohibit parties from repeating what they learned in mediation in court. Some laws protect the mediator from being called to testify about what happened in mediation. Talk to your mediator to find out what laws and expectations govern mediation in your state.
Will my mediator take sides or decide who wins?
Mediators are trained to be impartial (although a growing number of practitioners like to think of themselves as multi-partial – that is, concerned about the needs and interests of everybody involved). From my perspective, is not part of the mediator’s role to focus on getting the parties to agree. Rather, the mediator’s focus should be on facilitating a good process. For me, when a person asks whether a mediation process was successful, if I feel that I did my best job facilitating the process, then the answer is yes, whether or not the parties came to an agreement.
Some mediators are more directive. That is, they will tell parties if they believe that their arguments or positions are more persuasive. Some people find this style of mediation to be helpful. Personally, I do not practice this style of mediation. I feel it is more important that the parties remain in control. They are the experts regarding their own needs and interests and outcomes.