March 29, 1996, Geneva, Switzerland
The Selection of the Mediator
by Margaret Shaw,
Adjunct Professor, New York University School of Law
(New York, United States of America)
One key to the success of mediation is the quality of the mediator appointed or selected by the parties. Yet defining mediator competence remains a hotly debated topic, and research to date has not shed much light on the subject (1). It is generally agreed that competence is determined by some combination of three general factors: personal characteristics, training and experience. In some kinds of disputes, such as intellectual property disputes, some would argue that mediator effectiveness is enhanced by subject-matter expertise. Finally, individual mediators have different styles and different approaches to the mediation process. Parties own goals will determine what kind of mediation they will undertake and what sort of mediator they will select.
A. In defining mediator competence, it is helpful at the outset to identify the various tasks that a mediator will be called upon to play, and the skills necessary for competent performance of those tasks. Understanding that different categories of cases may require different types and levels of skills, various organizations have developed lists of mediator skills.
B. The Commission on Qualifications of the Society of Professionals in Dispute Resolution ("SPIDR"), in its first report published in 1989, developed the following list:
"Skills necessary for competent performance of a neutral include:
1. General
(a) Ability to listen actively;
(b) Ability to analyze problems, identify and separate the issues involved, and frame these issues for resolution or decision-making;
(c) Ability to use clear, neutral language...;
(d) Sensitivity to strongly felt values of the disputants, including gender, ethnic, and cultural differences;
(e) Ability to deal with complex factual materials;
(f) Presence and persistence, i.e., an overt commitment to honesty, dignified behavior, respect for the parties, and an ability to create and maintain control of a diverse group of disputants;
(g) Ability to identify and to separate the neutrals personal values from issues under consideration; and
(h) Ability to understand power imbalances.
2. For mediation
(a) Ability to understand the negotiating process and the role of advocacy;
(b) Ability to earn trust and maintain acceptability;
(c) Ability to convert parties positions into needs and interests;
(d) Ability to screen out non-mediable issues;
(e) Ability to help parties invent creative options;
(f) Ability to help the parties identify principles and criteria that will guide their decision-making;
(g) Ability to help parties assess their non-settlement alternatives;
(h) Ability to help parties make their own informed choices; and
(i) Ability to help parties assess whether their agreement can be implemented. (2)
C. The "Test Design Project," an independent research project created in 1990 to follow up on the SPIDR Commissions 1989 report, developed a methodology for use in selecting, training and evaluating mediators. The Test Design Project also published a list of common mediator tasks and skills (3) which is set out in the Annex to this outline.
D. How do mediators acquire mastery of those identified tasks and skills? Many programs and jurisdictions require their mediators to have a particular educational background or professional standing. However, it should be recognized that no degree ensures competent performance as a mediator. While in some kinds of cases legal or other knowledge or experience related to the subject matter of the case may be appropriate, it is generally thought that competent performance is more attributable to personal characteristics than to education, profession, age or other criteria. Mediators become competent through some combination of training, experience, skills-based education and apprenticeship.
E. How can one determine whether a particular individual has mastered those identified tasks and skills? There are various methods of assessing mediator competence: inquiry about training and experience, interviewing, obtaining references, and determining "success rates." Sometimes courts, organizations and programs "certify" mediators by creating rosters of mediators to whom cases will be referred. While one can rely to a certain extent on the court, organization or program to ensure the quality of the mediators on their rosters, it is helpful to determine their qualifications criteria, and the frequency with which they evaluate the mediators on their rosters to determine whether they continue to meet the qualifications criteria.
F. Whether subject-matter knowledge or expertise is necessary is, again, subject to debate. Some argue that process expertise is more important than subject-matter expertise, and that the mediator needs only enough knowledge about the type of dispute being mediated to facilitate the parties communications, and to alert parties to the existence of legal information relevant to their decision to settle (4). Others argue that subject-matter expertise enables mediators to help parties be more realistic about the relative strengths and weaknesses of their cases, and to help parties develop creative options to resolve their dispute. A Panel on Mediator Qualifications convened in the United States a few years ago made the following recommendations on this subject:
"General knowledge of the subject matter ... is valuable for several reasons. Initially, it enables the mediator to facilitate communication between the parties. An understanding of the parties terminology obviates the need for the mediator to stop and ask for clarification, and enables the mediator to understand when semantics are impeding the process. It also enables the mediator to understand the implications of the parties communications and to raise relevant and often important questions. With general subject matter knowledge the mediator is also able to draw analogies to similar, related disputes, and to help parties view their immediate dispute from a different or larger perspective. Finally, the parties must trust the mediator before they can trust the process, and must trust the process before they can begin to trust each other. A mediators general knowledge of the subject matter of the dispute will give the mediator credibility with the parties, and thus enhance trust building, as essential element of successful mediation.
The panel specifically distinguished general knowledge of the subject matter of a dispute from technical expertise ... [and] recognized that technical expertise may be relevant in particular cases where the mediator will be called upon to play a very assertive role which occurs when the parties are either unusually hostile or passive. ... It should be stressed that subject matter knowledge as a factor in mediator selection relates solely to its value in facilitating the process, and not to the influence such knowledge might have on the outcome of the negotiations." (5)
G. Mediator style is also relevant to mediator selection. Mediation is used in many different contexts and can take different forms, depending upon the style of the particular mediator. Professor Leonard Riskin of the University of Missouri-Columbia Law School has proposed a system for classifying mediator orientations, strategies and techniques that is useful in the selection process. A summary is attached to this outline. Riskins system for classifying mediators essentially poses two questions: "Does the mediator tend to define problems narrowly (for example, who pays how much to whom?) or broadly (for example, what are the parties underlying interests)?" and "Does the mediator think s/he should evaluate--make assessments or predictions or proposals for agreement -- or facilitate the parties negotiation without evaluating?" Answers to these questions help parties determine what kind of mediation they wish to undertake and what sort of mediator to seek.
H. In selecting mediators, parties should, at a minimum, know the following information about the individuals under consideration:
1. prior training and experience relevant to the dispute resolution services to be provided;
2. personal and/or previous business relationships with the parties;
3. all financial interests that may have any bearing on the case;
4. all fees and expenses charged;
5. any code of ethics ... to which the neutral adheres;
6. personal bias that, if judged by an objective standard, would affect the individuals performance as a neutral; and
7. prior disciplinary action by any profession. (6)
I. The WIPO Mediation Rules applicable to appointment of the mediator provide as follows:
Article 6
(a) Unless the parties have agreed themselves on the person of the mediator or on another procedure for appointing the mediator, the mediator shall be appointed by the Center after consultation with the parties.
(b) The prospective mediator shall, by accepting appointment, be deemed to have undertaken to make available sufficient time to enable the mediation to be conducted expeditiously.
Article 7
The mediator shall be neutral, impartial and independent.
ANNEX
List of Common Mediator Tasks and Skills (7)
Tasks
A. Gathering Background Information
1. Read the case file to learn about the background and disputants.
2. Gather background information on a case from negotiators or other mediators (e.g. settlement patterns in similar cases).
3. Read legal or other technical materials to obtain background information.
4. Read and follow procedures, instructions, schedules and deadlines.
B. Facilitating Communication
5. Meet disputants and make introductions.
6. Explain the mediation process to disputants.
7. Answer disputants questions about mediation.
8. Listen to disputants describe problems and issues. (8)
9. Ask neutral, open-ended questions to elicit information.
10. Summarize/paraphrase disputants statements.
11. Establish atmosphere in which anger and tension are expressed constructively. (9)
12. Focus the discussion on issues (i.e. not personalities or emotions).
13. Convey respect and neutrality to the parties.
C. Communicating Information to Others
14. Refer disputants to specialists (e.g. alcoholism counselors) or other services, or bring such specialists into the mediation process.
15. Refer disputants to sources of information about their legal rights and recourses.
D. Analyzing Information
16. Help the parties define and clarify the issues in a case.
17. Help the parties distinguish between important issues and those of lesser importance.
18. Help the parties detect and address hidden issues.
19. Analyze the interpersonal dynamics of a dispute.
E. Facilitating Agreement
20. Assist the parties to develop options.
21. Assist the parties to evaluate alternative solutions.
22. Assess parties readiness to resolve issues.
23. Emphasize areas of agreement.
24. Clarify and frame specific agreement points.
25. Clearly convey to parties, and help parties understand, limitations to possible agreement.
26. Level with the parties about the consequences of non-agreement.
F. Managing Cases
27. Estimate the scope, intensity and contentiousness of a case.
28. Ask questions to determine whether mediation service is justified or appropriate.
29. Ask questions to determine appropriate departures from usual practice for a given situation.
30. Terminate or defer mediation where appropriate.
G. Documenting Information
31. Draft agreements between disputants.
Knowledges, Skills, Abilities and Other Attributes ("KSAOs") (10)
1. Reasoning: To reason logically and analytically, effectively distinguishing issues and questioning assumptions.
2. Analyzing: To assimilate large quantities of varied information into logical ideas or concepts.
3. Problem Solving: To generate, assess and prioritize alternative solutions to a problem, or help the parties do so.
4. Reading Comprehension: To read and comprehend written materials.
5. Writing: To write clearly and concisely, using neutral language.
6. Oral communication: To speak with clarity, and to listen carefully and empathetically.
7. Non-verbal communication: To use voice inflection, gestures, and eye contact appropriately.
8. Interviewing: To obtain and process information from others, eliciting information, listening actively, and facilitating an exchange of information.
9. Emotional stability/maturity: To remain calm and level-headed in stressful and emotional situations.
10. Sensitivity: To recognize a variety of emotions and respond appropriately.
11. Integrity: To be responsible, ethical and honest.
12. Recognizing Values: To discern own and others strongly held values.
13. Impartiality: To maintain an open mind about different points of view.
14. Organizing: To manage effectively.
15. Following procedure: To follow agreed-upon procedures.
16. Commitment: Interest in helping others to resolve conflict.
Once again, just because a given task has to be performed does not necessarily mean it is significant or discrete enough to be an essential component of a selection test or a training course. Both tests and training have to be designed for the real world of budgets and timetables, and for a complex job inevitably something has to be left out. The evaluation criteria which follow, and the prototype tests recounted in Appendix B, reflect judgments as to which criteria justify the investment of time and resources; those judgments will not suit every program, and are subject to programs modification.
Notes
1. Research on several ADR programs in the United states confirms that the identity of the individual neutral plays a significant role in the outcome of a given case. Studies have found, for example, statistically significant associations between the identity of the mediator and whether the case is resolved, the time for case processing, and participant satisfaction with the process. However, the research was not designed to determine the basis for these kinds of associations or, in other words, what knowledge, skills, abilities or other attributes of the mediator determined success. See M. Shaw, "Selection, Training and Qualification of Neutrals," National Symposium on Court-Connected Dispute Resolution Research, Washington, D.C.: State Justice Institute (1994) at 155.
2. Qualifying Neutrals: The Basic Principles, Washington, D.C.: Society of Professionals in Dispute Resolution (1989) at 17.
3. Performance Based Assessment: A Methodology for Use in Selecting, Training and Evaluating Mediators, Washington, D.C.: National Institute for Dispute Resolution (1995).
4. See Performance-Based Assessment, supra at 25.
5. M. Shaw, "Mediator Qualifications: Report of a Symposium on Critical Issues in Alternative Dispute Resolution," Seton Hall Legislative Journal vol. 12, No. 1 (1988) at 132-133.
6. "Qualifying Neutrals: The Basic Principles," supra at 13.
7. Performanced Based Assessment: A Methodology for Use in Selecting, Training and Evaluating Mediators, Washington, D.C., National Institute for Dispute Resolution (1995).
8. It is worth nothing that some commentators believe that at least in some settings, this criterion outweighs virtually all others in the list. Certainly the fact that diverse tasks and skills are listed should not be taken as endorsement of the proposition that they are all of equal importance for any particular program.
9. At least one commentator has objected that "building trust" is a key to effectiveness as a mediator (Salem, 1993). While this Methodology does not disagree as such, to use such a term directly is to pursue the unmeasurable. Furthermore, mediators engage in certain behaviors to gain the parties trust--and those behaviors can be described more easily. The document therefore treats trust-building as a compound product of many of the tasks and skills it describes.
10. "Knowledge" refers to legal or procedural subject matter. Knowledges are not listed here because they are specific to the situation (e.g., type of mediation program, state law), and because for some types of program little or no substantive knowledge is required to prior to selection.