Choosing the right mediator for your client is important and necessary for achieving the desired outcome. When choosing a mediator there are a number of things you need to take into account and it’s not always grey hair and legal titles and subnominals. Below are the questions you should be asking the mediator before you recommend them to clients.
Consider the mediator’s training and mediation experience and their commitment to continuing professional development. Make sure they are nationally accredited and understand and are confident with the process of mediation they offer. This is far more important than knowing the law inside out and backwards, or being an articulate barrister, or having industry specific knowledge. Check a mediator’s credentials (which SHAW Mediation has listed on all Mediator profiles), and don’t hesitate to ask them about the mediation process they offer, their role in the mediation process and how they will progress the process to an outcome.
Does the mediator have both patience and tenacity? The approach of the mediator to achieving resolution and the skills they use is more important to the mediation than their personality and being a well respected person, lest lone for reasons other than mediation. The best mediators spend quality time before any joint session listening and understanding. They then demonstrate during the joint session an openness for new and various options and being confident to spend time with the parties to evaluate all of the options generated from their own perspective. This ensures that the parties will feel more confident to make final decisions themselves when it comes to negotiation. Ask mediators how they conduct their mediations and where they spend most of the time during the mediation process.
Who is managing the process? Consider the personalities involved in the case: your own client, the other side, the opposing legal representative and counsel. Some cases clearly need an empathetic approach where there is high emotion – especially true of inheritance cases and disputes involving a family home – where others may need a more authoritative approach. No two cases are the same. However, they need to be managed and the very best mediators have the skills to be chameleon-like, adopting a variety of styles at different times in different rooms with different people without ever seeming to lack sincerity or authenticity. Also, they are able to keep everyone heading in the same direction at the fastest pace of the slowest person. Ask mediators how they manage the mediation process and different personality types involved in the mediation.
Team work during the mediation. Make sure everyone knows what their role is in the mediation and is working together towards the best outcome for your client. Mediation involves teamwork between the lawyers and the mediator. Teamwork is necessary in mediation because the lawyers and mediator are working towards resolution for the same client. The lawyer is in control of the legal advice and options generated, the mediator is in control of the mediation process, and facilitating the resolution of the dispute in the best possible way. As colleagues and fellow legal practitioners performing legal services, professional conduct of honesty and ethics between the lawyers and the mediator is a given. The mediator also needs the lawyer’s assistance to manage the client’s expectations and emotions and help them negotiate and evaluate options and offers in terms of gains to move towards resolution. Ask the mediator how they like to work with lawyers and how you can work best together for your client during the mediation.
The choice of Mediator is crucial to achieving the best result. SHAW Mediators are nationally accredited and have a legal background. SHAW Mediation Australia Mediators are qualified in mediation and law and all comply with ongoing professional development and are committed to the ethos and guidelines of the Mediation Standards of the Mediation Standards Board. All mediators are offering the same facilitative process of mediation and recognise that it is the process of mediation that is the hero and not the mediator. This means that SHAW Mediators have the training, skills and emotional intelligence to facilitate productive future focused mediations. Our mediators are patient, persistent and passionate about helping you to achieve the client’s desired outcome. We take time to understand your client’s concerns, both legal and personal, and work with you together to move past those barriers to settlement using the facilitative mediation process. We remain independent throughout the process and do everything to make sure your clients feel safe and supported at all times in a respectful environment, while they retain control of their outcomes.
SHAW Mediation Australia CEO Alison Shaw will be presenting a Webinar for Lawyers on this topic on the 14th September. CLICK HERE for further information.