As we get older we anticipate more calm and less conflict. It is disappointing when we realize that we are still human and that somehow life has not magically become more Zen. In our fifties, sixties and beyond, we still have difficulties with siblings. We lose jobs, look for work, and have other employment changes. We get divorced and strike up new relationships. We have grandchildren AND aging parents. Life has not slowed down at all. Conflicts arise everyday at home, at work, with children, parents – it feels like the list of potential difficulties grows, not shrinks.
The point is: we never outgrow conflict. It is entirely appropriate to hire a mediator, somebody who is neutral and who will help you through the conflict so that you can keep going to experience the calm you are looking for. The problem is, hiring a mediator is confusing. What is a mediator supposed to be good at? How DO you hire a mediator?
Here are TEN TIPS to help you find the right mediator for you. First, make a list of three to five mediators by asking your friends and colleagues for referrals and search online for mediators in your area. It should be relatively easy to come up with a short list to interview. Here are some tips to help you succeed in finding someone really good:
#1 Lawyers and judges rarely make great mediators. It is common for lawyers and retired judges to do mediation. Lawyers might be capable lawyers and judges might be fair judges, but it is rare that either one is able to completely take off his/her advocate/judging hat to do what is required to be a great mediator: be neutral, nonjudgmental, and comfortable with conflict. This leads us directly to number two:
#2 Mediators should be extremely comfortable around conflict. Believe it or not, many mediators are actually conflict avoidant. These mediators believe the best way for them to help is to keep order in the room. They set ground rules (like no interrupting) then police these rules (have you ever had a normal conversation and not been interrupted?) They make agendas and then keep people from veering off the agendas. They tell people to calm down and to act respectfully. Do they not know that when people are upset they ACT upset? Truly great mediators welcome conflict into the room. They know that you cannot avoid conflict and have a high-quality process for the participants. It is important that the mediator not stir up the conflict, that is, we should not be digging it up and forcing it to come out, but it is indeed our job to tend to any conflict that is present. Agendas are useful, but not if it keeps parties from discussing things that are very important to them.
#3 If you are in a situation such as divorce which is fairly amicable, you likely DO NOT need a mediator. Many lawyers tell prospective clients who are divorcing but have little conflict that they don’t need a lawyer and they should go find a mediator. Most mediators will indeed take these cases and it is a waste of people’s money. Here’s what to do if you are divorcing and in fairly low conflict: go online and either start filling out the forms online (some states have their own online government filing website or there are online businesses that do this for every state) or search online for your state’s divorce forms, print them out and start filling them out. If you get stuck and start fighting, THEN call a mediator.
#4 You should feel some amount of good chemistry with the mediator. Call it what you want – trust, openness, neutrality, comfort – you should feel some of this stuff when you are interviewing a mediator. If you feel judged, misunderstood, cut-off, bossed around or closed down: find a different mediator. Bottom line, if the mediator sort of bugs you, don’t hire him or her. There are lots of us and you should take the time to find someone who makes you feel steady, heard, and empowered.
#5 Good mediators must be good communicators. Mediators should not be awkward nor should they be dominating. Good mediators often help by modeling good communication skills for their clients. Also, a mediator should not be talking for you nor relying on caucuses (private meetings with each of you during a session) as a regular way of operating a mediation. Mediators, by the way, should welcome anyone into the mediation room whom the parties want to (and agree to) include, such as attorneys and other experts and support people.
#6 Ask how much they charge. Some people are afraid to ask about the money part. You would ask a plumber or housekeeper before you would hire them, why not ask a mediator? If the amount is a hardship for you, you should feel free to ask if the mediator works on a sliding scale. Oh, and their high price and years of experience are not always indicative of their efficacy. THIS is why you must interview them.
#7 Mediators should charge you by the hour and not require a retainer. Period. Mediator services should be unbundled. Retainers do not benefit the client. After one meeting with the mediator you may decide that this mediator is not for you and go back to your list. Or you may feel that you can continue on without a mediator and discuss things yourselves, which is always preferable. If you then run into an obstacle, call again for help. Also, you are not required to pay them to write up a memorandum of understanding. These documents are normally not necessary or useful, and they generally are not legally binding. Some mediators will give you notes after the meeting for a small charge. You may also take your own notes and not ask the mediator to do this for you, if they are going to charge you for it. If your mediator wants to do some of these extra services and charges for them, make sure to ask why they will be useful to YOU.
#8 A mediator should not be spending much time separately with each party. In order to maintain neutrality, and even the appearance of neutrality, a mediator should not let you go on and on about your story over the phone. It is really hard to NOT do this as the potential client, but a mediator should tell you early on that it is his/her job to be neutral and that means not getting too much into each side’s details. Mediators should offer to speak to each party (if they have spoken to one party) and may offer a free initial session for parties to come in so they can get a feel for the mediator.
#9 A mediator should be available in a timely manner. Once you make the choice to go with a particular mediator, often you want to move ahead right away. Go for it! Do not let someone convince you that you should wait a bunch of time. A mediator should work some evenings and weekends to accommodate YOU. Once you are a client you definitely should not have to wait a long time before you are fit back into the mediator’s schedule. It is not ethical for you to have an initial appointment with a mediator and then for them to not promptly schedule your next appointment (should you need one).
#10 Mediators are as different as attorneys are different. This will prove out to you when you call a few and interview them. You will notice different affects (casual vs. formal, comfortable vs. strict, chatty vs. spare, etc.), different philosophies (problem-solving vs. process oriented,), etc. and you will notice as you ask them questions how willing they are to engage with you. If they are frustrated by your asking questions, this is meaningful. You will note many differences, including mediators who disagree with what I have written here.
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