A Consumer Guide To SELECTING A MEDIATOR

A Consumer Guide toSELECTINGAMEDIATORAlaska Judicial Council1029 W. 3rd Avenue, Suite 201Anchorage, Alaska 99501–1969StateJusticeInstitute

Table of ContentsPurpose of This Brochure.3What Qualifications Does a Mediator Need?.3What Makes a Competent Mediator?. .4Five Steps to Choosing a Qualified Mediator.4Decide What You Want from Mediation.5Compile a List of Names.5Evaluate Written Materials.6Interview the Mediators.7Evaluate Information and Make Decision.11Conclusion.12More Information/Resources. .12Standards of Practice. 16Quick Reference.Inside Back Cover

This guide was developed under a grant (#SJI–94–03E–H–284 ) fromthe State Justice Institute. The points of view expressed are those of theauthors and do not necessarily represent the official position orpolicies of the State Justice Institute. The Judicial Council is a state agencycharged by the Alaska constitution to make recommendations that improvethe administration of justice.TAcknowledgementshe Judicial Council would like to express its appreciation to the manypeople who contributed to this project. Over forty people contributedtheir knowledge, time and useful suggestions on the substance andformat of the brochure, and many contributed invaluable comments ondrafts. Thanks to all who gave so freely of their expertise and time, andexhibited such support and enthusiasm for the project.TNote to The Readero make an informed choice of a mediator, the consumer musthave information and the ability to evaluate that information. Thisguide begins the educational process by presenting a framework forunderstanding mediator competence. The information is based on researchpresented at the 1993 National Symposium on Court–Connected DisputeResolution Research sponsored by the State Justice Institute and the NationalCenter for State Courts, the work of the Test Design Project, the work ofalternate dispute resolution policy makers, including the SPIDR Commissionon Qualifications and the experience of mediators and mediation programdirectors nationwide. We anticipate that the guide will need to be updatedas our knowledge grows.MHow to Use This Guideark the guide up. Use the checklists as you go. Don’t feel that youmust use all the information or go through all the suggested steps;use only what seems most helpful. Refer to the Resources sectionat the back for more information.Alaska Judicial Council1029 W. 3rd, Suite 201Anchorage, AK 99501-1969907/279–2526 Fax 907/276–5046www.ajc.state.ak.us

I. Purpose of This BrochureThis guide is for anyonelooking for a mediator. It willMediation is a conflict resolutionbe especially useful to lawyersprocess in which one or moreimpartial persons intervene in aor other professionals advisingconflict with the disputants' consenttheir clients, court systems andand help them negotiate a mutuallymediation programs that provideacceptable agreement. The mediatorinformation to consumers,does not take sides or decide howjudges who refer litigants tothe dispute should be resolved.mediation, and people who havebeen referred by the court tomediation and who must choosetheir own mediator.This guide does not explain mediation or alternative disputeresolution (ADR) in detail, although a consumer needs at least a basicunderstanding of mediation to profit fully from this guide. To learn aboutmediation, consult books, articles and pamphlets at your local library,community mediation center, courthouse, bookstore, mediator's office,or mediation association. The Alaska Judicial Council publishes a freepamphlet that gives some basic information about mediation.II. What Qualifications Does a Mediator Need?Qualifications refer to the amount and type of training, educationand experience possessed by a mediator. In some states, courts orlegislatures impose training or experience standards on mediators whopractice in state– or court–funded mediation programs. In most states,including Alaska, a person can offer private mediation services withouttaking a class, passing a test or having a special license or certification.As of 1999, no entity in Alaska licensed, certified or otherwise regulatedmediation practice. In reality, however, many private mediators, and mostWhat does it mean if someone tells you they are a "certified"mediator? Sometimes, a person has a certificate of trainingcompleted. Such a certificate is a confirmation that the person hassuccessfully completed training, but does not confirm that the personhas attained any level of competance. In other cases, the person hasbeen granted certification by a public or private entity to indicate thatthe person has attained a certain level of competance in accordancewith experience, training and other standards. Consumers may use thistype of certificate to determine the qualifications of the practitioner. Asmart consumer always asks what the particular certificate means.

of those who work for or are associated with mediation organizations andprograms, have training or experience, or both.Most independent mediation programs impose their own training or experiencestandards on mediators. For example, the Resolution Center, a communitymediation center in Anchorage, requires its volunteers to complete acertain amount of mediation training and an apprenticeship. Manymediation referral services also impose training, experience or otherrequirements on mediators who wish to be included on their rosters.Some national and local mediation membership organizationsset training and experience requirements and ethical standards fortheir practicing members (refer to the resources section at the end ofthis brochure for more information). One national non–profit mediatororganization, the Academy of Family Mediators, is working to develop avoluntary, performance–based certification program.III. What Makes a Competent Mediator?There is no universal answer to this question. No particular typeor amount of education or job experience has been shown to predictsuccess as a mediator. Successful mediators come from many differentbackgrounds.Competence depends partly on the context of the dispute andthe parties’ expectations. It also depends on whether the mediator hasthe right mix of acquired skills, training, education, experience andnatural abilities to help resolve the specific dispute. Important skills andabilities include neutrality, ability to communicate, ability to listen andunderstand, and ability to define and clarify issues.IV. Five Steps to Choosing a Qualified MediatorBecause no easy formula can predict mediator competence, theconsumer must do some groundwork before selecting a mediator. First,you must understand the mediation process. After you understand the Checklist: Five Steps to Choosing a Mediator1. Decide what you want from mediation2. Get a list of mediators3. Look over mediator's written qualifications4. Interview mediators5. Evaluate information and make decision

basics, you can use the following process to choose a mediator:These steps are described on the next pages. Remember during yoursearch that a mediator should remain neutral and treat both parties withequal fairness and respect.1. Decide What You Want from Mediation oThink about your goals for the session. Do you want a mediatorwho suggests options in order to help move the parties towardsagreement? Or, do you want a mediator who resists offering opinions sothe parties feel responsible for their agreement? Think about past attemptsat negotiation and problems with those attempts. What are your choices ifmediation does not work?Think about your abilities. What are your strengths andweaknesses as a negotiator? What are the other party’s strengths andweaknesses? What are your emotional limitations? Do you expect themediator to help you stand your ground if the other person negotiatesbetter than you or has more “power?” Thinking about these issues isespecially important if there is a power imbalance between you and theother party. If there has been abuse and or violence between you and theother party, please read the Domestic Abuse section on page 10.Think about the dispute and the context in which you mustresolve it. What is the time frame? Is this a commercial dispute betweenexperienced insurance company representatives, or is it a divorceinvolving an emotional child custody decision? The approach or modelthat commercial disputants might prefer may differ greatly from the onepreferred by a mother and father.Consider your budget. How much you can spend might limityour choice of mediator or mediation program.Many mediators and dispute resolution firms or services canhelp you understand what services would be best for your dispute. Somewill contact the other party to the dispute to introduce the concept ofmediation.2. Compile a List of Names oYou can get a list of mediators from several sources.Word of Mouth. Ask a friend, your attorney, your therapist, oranother professional. Describe your case to a mediator and ask, “Otherthan yourself, who are the most skilled mediators in this kind of case?”Talk to people who have been in a mediation with the mediator (you canask the mediator for names of clients). What was their case about and

what were their impressions of the mediator?Written Lists. Check local listings in the Yellow Pages. The AlaskaCourt System publishes a directory of mediators in Alaska that is availableon the court's web page (www.courts.state.ak.us) and at the Alaska statelaw library. Rural consumers can consult the Alaska Judicial Council’sdirectory of organizations that resolve disputes in rural areas (many ofthese are tribal courts or councils). Many local mediation organizationsmaintain directories of member–mediators.Referral Services. Many national mediator membershiporganizations and trade organizations keep lists of practitioner membersand offer referral services (some of these organizations are listed at theend of this pamphlet). Some may charge for the referral services. Checklist: Get Names1. Ask people and professionals whom you know2. Look at directories3. Call referral services (ask whether they chargeto refer you to a mediator)3. Evaluate Written Materials oCall or write several mediators on your list and ask them to sendyou their promotional materials, resume, references and a sample of theirwritten work. These materials should cover most of the following topics.Mediation Training. How was the mediator trained? Somemediators receive formal classroom–style training. Some participate inapprenticeships or in mentoring programs. While training alone does notguarantee a competent mediator, most professional mediators have hadsome type of formal training. Was the training geared towards this type ofdispute? How many hours of training has this mediator had? How recentwas the training?Experience. Evaluate the mediator’s type and amount ofexperience (number of years of mediation, number of mediationsconducted, types of mediations conducted). How many cases similar toyours has the mediator handled? A mediator’s experience is particularlyimportant if he or she has limited formal training.Written Work. Some mediators will write up notes aboutagreements or even draft agreements for the parties. Other mediators donot prepare written agreements or contracts. If your mediator will prepare