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Choosing The Right Mediator

Before choosing a mediator you may wish to consider the following issues and ask some questions. Remember, every mediator has her/his own style, and being comfortable with the professionals involved will make the process easier and less stressful. Don't be afraid to ask the mediator you are considering anything you want about the process or the nuts and bolts of mediation. He or she will not be able to discuss any possible outcomes for particular case however, and they will not be able to discuss in specific terms any other cases they may have mediated in the past.

Does the mediator provide information prior to the first session regarding their practice, billing options, expectations and fee structures?

The internet has provided the option for the clients in a mediation to learn a lot about the mediators in their area.  Most mediators will have a fairly substantial website that provides information on fees, billing and scheduling as well as general information on their practice. Under the ethical guidelines provided by both the Alternative Dispute Section of the Texas Bar Association as well as the Texas Association of Mediators the mediator must discuss billing and fees and have agreement before proceeding with the mediation. A mediator cannot bill or charge on a contingency fee based on the outcome of the mediation. A mediator also cannot change their fee structure once the mediation has begun.  

Does the mediator explain the process she/he will be using?

Mediators may use one of several styles or a combination of styles. Typically all mediations will start with a joint session where the mediator reviews the agreement to mediate, discusses the mediation process, explains confidentiality and exceptions to confidentiality and has all parties sign off on the agreement to proceed with the mediation. From this point on each style of mediation takes a slightly different direction.

The most common style of mediation is problem solving or interest based mediation, also known as facilitative mediation. This model focuses on the issues expressed by the parties in the development of the mediation agenda. The mediator will focus on moving the discussion forward to resolution, or facilitating a productive discussion between the parties within the agenda framework.There is often extensive use of the caucus in this model, which allows each party and their representative to talk with the mediator who then relays this message to the other side or sides in the dispute . This mediation style is very effective when there is limited future interaction between the parties or in high conflict types of mediation cases.

The transformative style of mediation focuses on the relationship within aspects of the past, present and future interactions of the parties. The emphasis is on empowerment of the parties to resolve their conflicts and on recognizing the abilities of each other to work together in the present conflict and in future interactions. There is very limited use of caucusing in this model, and the majority of time will be spent in joint session. This style of mediation is most effective when there will be significant ongoing contact between the parties, such as in co-parenting, family interactions, family or small business or workplace conflicts. The mediator asks questions to help the parties gain a more complete understanding of all aspects of the conflict. The parties set the agenda, decide what to talk about and even work together to develop the ground rules and guidelines for a productive discussion. This model of mediation is used extensively by Positive Communication Systems and Mardi Winder-Adams and is ideal for any situation where the parties to the dispute will continue to have ongoing interactions. Family and divorce mediations, workplace, community and EEO mediations are good examples of disputes that are typically handled with a transformative mediation style.

The evaluative style of mediation is a very specialized form of mediation. It is usually only done by an attorney-mediator or mediator that has extensive legal experience. This type of mediation explores the options that each party would have should the case go to litigation. Parties are given an opinion on how the court would respond and use this information to come to resolution.

Does the mediator have flexible scheduling that will accommodate your schedule and the schedule of other parties involved?

Some mediators offer weekend and evening sessions. While this may meet your needs, it may not be acceptable to other professionals such as financial planners or attorneys that may need to be present. It is therefore essential to talk to your representatives and subject matter experts if they need to be present for the mediation. Many mediators offer parties the option to make phone calls and even provide information from experts or representatives by phone during the mediation to save time and money for the parties.

Is the mediator able to answer questions about the process to your satisfaction?

Mediators should be willing to explain the process to your satisfaction prior to beginning the mediation. Be aware that the mediator cannot discuss any questions or information that the other party or parties to your case have requested. The mediators confidentiality starts with the first contact with any party in the dispute and continues throughout the mediation and beyond. Please remember that a mediator will not be able to answer specific questions about the outcome of the mediation or about the chances for settling during the mediation in your given case.

Does the mediator provide a resume that includes trainings and professional organizations and affiliations?

Most mediators  in Texas will belong to one or all of the following organizations:

Texas Association of Mediators (TAM)
Association for Conflict Resolution (ACR)
Association of Family and Conciliatory Courts (AFCC)
Conflict Resolution Network (CRN)
Texas Mediator Credentialing Association (TMCR)

It is important to remember that belonging to a professional organization is not a requirement to being a professional mediator, but it does show a commitment towards professional development and growth. 

Does the mediator training meet the standards required by your state?

In Texas those mediators practicing court ordered or appointed mediations have to meet a minimun training standard. In all cases except family and divorce mediations a mediator must have completed a court approved 40 hour mediation training. These trainings are also approved through the Texas Mediation Trainers Roundtable. For those mediators practicing court ordered or family and divorce mediation
an additional 24 hours of training in the fields of family dynamics, domestic violence screening, child development and family law issues is required above the 40 hour basic training. Most mediators exceed these minimum training standards. Full information on training standards in Texas for mediators can be found at: http://www.tmtr.org/StandardsFolder/40hr-training.htm

There is no specific requirement for mediators offering private services that are not appointed through the court within the state of Texas. Be sure to ask about training and qualifications if this information is not provided on a website or through credentialing.

Is the mediator credentialed or accredited in your state?

In Texas, credentialed mediators can be found at http://www.txmca.org/credmed.htm.  Currently in Texas credentialing is voluntary but typically required for those mediators working in family court systems or in civil court mediation services. Credentialed mediators must agree to follow the ethical guidelines for mediators and also commit to completing pro bono services and continuing education to maintain their credentialing level each year.

Mardi Winder-Adams is credentialed at the Distinguished level, which is the highest level of credentialing offered within the state of Texas.

Does the mediator offer block billing as well as hourly rates?

Hourly rates are usually more expensive than block rates but may be important for just an hour or so to extend a block fee session. Most block rates are in 3, 4 or 8 hour blocks. All mediation work requires payment in advance. 

the mediator any prior knowledge or vested interest in the outcome of the session?

The mediator must disclose to the parties if they have any prior knowledge of the dispute, the participants, or have any financial or other interest in the outcome of the sessions. In the event the there is a prior knowledge of any of the participants, the mediator will notify both parties and they will decide if the mediator can continue. Even if the parties wish to use the mediator, the mediator may believe that she or he cannot remain neutral and may choose not to accept the case. In most cases the mediator will have mediated with the attorneys in previous cases and this is not typically considered to be a bias. Most mediators will still disclose this information during the mediators opening statement prior to signing the Agreement To Mediate.