Self-determination is the key principle underlying mediation. It’s the idea that in mediation, parties should have the power to decide for themselves whether and how they are going to resolve their disagreements. The importance of this principle is reflected in the code of ethics for mediators:
A mediator shall recognize that mediation is based on the principle of self-determination by the parties. It requires that the mediation process rely upon the ability of the parties to reach a voluntary, uncoerced agreement. The primary responsibility for the resolution of a dispute and the shaping of a settlement agreement rests with the parties.
So how do you choose someone to work with you in a process like that? There’s no set answer to that question, but there are some things you can consider when picking a mediator.
Credibility and Experience
Under the Minnesota Civil Mediation Act, anyone acting as a mediator “for compensation” is required to provide the parties with a written statement describing their “educational background and relevant training and experience in the field.” That statement is a good place to start because it will tell you something about a potential mediator’s formal training in mediation, how long they have been mediating, and in many cases a little about how they approach mediation.
The mediator’s CV may also offer information about any areas of conflict they focus on. In some cases, parties want a mediator who understands the industry they’re in or the legal issues underlying their dispute, and it’s perfectly reasonable to ask a mediator about that if the information isn’t in the written statement they share.
But you shouldn’t assume you need a mediator with expertise in a particular area of law. Remember that mediators’ job isn’t to decide cases or tell the parties what to do. Their job is to protect parties’ self-determination in the process, to guide the discussion with questions, and to open up the opportunity for the parties – who often know more about their particular situation than any mediator ever could – to make their own decisions.
The code of ethics also requires a mediator to remain impartial. They can’t take sides, and should not lose sight of the fact that both the dispute and the solution – if any – belong to the parties. This doesn’t mean a mediator can’t share opinions on the strengths and weaknesses of the parties’ arguments, especially if the parties are looking for some outside perspective. But it does mean that mediators cannot let themselves get invested in one side’s success or even in the idea that the parties must reach agreement.
This can be hard for you to assess in advance, but you may want to ask a potential mediator about their mediation style, and in particular how they would handle situations in which one (or both) of the parties were refusing to budge. If the answer is that the mediator would do everything they could to cajole the parties into settlement, consider looking elsewhere.
Flexibility and Trustworthiness
Mediation is a much looser process than litigation, so it’s important to choose a mediator who can adapt and evolve to the parties’ needs. When a disagreement arises or communication breaks down, the mediator needs to know how to refocus the conversation and work through communication challenges. Additionally, the parties need to trust the mediator and feel comfortable in their presence. Participating in mediation often requires some degree of vulnerability on your part, so take the time to find a mediator who makes you feel heard and valued.
Learn more about the mediation process in Minneapolis and St. Paul by calling Rubric Legal LLC today at (612) 465-0074.