So, you agreed to settle your business dispute through a mediation. How to choose the right mediator? Here are three essential things to consider:
Facilitative vs. evaluative? Ask your potential mediators whether they are “facilitative” or "evaluative” in their approach. Facilitative mediators focus on helping the parties work out a solution (think “win/win” and “expanding the pie”). Typically, facilitative mediators guide the communications, ask questions, and shuttle the parties’ offers and counter-offers back and forth but do not evaluate the strengths and weaknesses, or dollar value, of the claims. If you are not a “touchy feely” type, this approach may frustrate you more that you think. This type of mediator is likely not a lawyer. By contrast, evaluative or directive mediators, focus more on the substance of the case and the parties’ competing legal rights. Evaluative mediators will provide substantive feedback on the issues and may even offer predictions regarding likely outcomes at trial. This type of mediator is likely a lawyer. A very good mediator can adjust their style based on parties’ request, but they will always lean to one particular approach based on their personality and style of practice.
Industry experience. If you have a landlord / tenant dispute, do not hire a family mediator. If you have a dispute with your client over a landscaping job, do not hire a mediator handling employee disputes. You got the idea. Ask about your specific industry experience.
Personality. You have to be comfortable with your mediator’s personality. Meet with them in person at least once before making your choice, you will be glad you did. Do not rely on their online profile alone.
