I field dozens of discovery calls for my virtual mediation services every month.
It usually involves a business founder or partner reaching out to better understand how a mediator may help them.
If you don’t know what mediation is, read this article: Co-Founder Disputes Kill Startups - Try Mediation Before It Kills Yours.
To help potential clients better understand how to choose the right mediator for their situation, I wrote this piece. Not all mediators are the same. And I may not be the right fit for your situation. But these five questions will help you better understand what you should ask a potential mediator to see if there is the right alignment between your unique situation and their services.
Most mediators will have taken a 35-hour basic mediation course. It covers the mediation process, communication-skill building, and how to help parties explore win-win solutions through an interest-based negotiation.
But after that, in order to be successful and build a strong mediation practice, a mediator will develop subject matter expertise in a particular area.
For me, that is business mediation. I work with mid-to-late stage startups and established companies that need help resolving a co-founder departure, business dissolution, complex equity restructuring deals, or breach of contract claim. And I do it all virtually.
Other mediators may work primarily in healthcare, workplace disputes (employment discrimination or harassment), construction, IP, community disputes, landlord-tenant, etc. Find the right mediator with the subject matter expertise that you are looking for. It'll make all the difference.
In line with the subject matter expertise question, this question asks a mediator if they have helped resolve similar disputes. If they have, then they will know how to engage the fact-pattern of your case (even if it is different) and help you brainstorm solutions based on other situations they have mediated.
But keep in mind that no two mediations are the same.
As you ask this question, make sure to get specifics (if possible) about the result(s) that the mediator obtained. That'll offer clues to you as to whether or not they could be applied to your situations. If so, then the mediator may be right for you.
COVID-19 has changed the mediation industry. It has forced a lot of mediators to shift from in-person mediations to virtual. And virtual mediations have their own nuances to keep in mind. That includes being able to use the technology well, have fluency when it comes to using the break out room options (these are used for caucusing during a mediation), as well as general lighting and video camera use.
If a mediator’s digital fluency is low, then their ability to mediate will be greatly diminished.
Ask the mediator how many mediations they have conducted virtually to get a sense of how comfortable they are with the medium.
Mediators charge anywhere from $150 to $575 an hour. And the price is no indication of success.
If you’re working with a specific budget, let the mediator know that. They may be able to offer you specific payment plans or other payment structures.
But make sure that the price point matches the expectations that you hold for the person that will be helping you and the complexity of the situation you have. For example, a community based mediator may only charge $150 but will not help you brainstorm solutions. They'll use a more facilitated model of mediation instead of evaluative. For those mediators charging higher than $350, they'll act as a neutral party to help evaluate the options created. This could be helpful later as one or two of the disputing parties find it difficult to compromise.
Lastly, this is a question you should ask yourself.
At the end of the day, the effectiveness of a mediator is determined by how much you trust him or her to be competent.
Mediation is a unique process in that buy-in from everyone is crucial to its success. If you trust the mediator, that will make his or her job much easier.
Bottom line: mediation is an attractive alternative to litigation or involved attorneys. It’s much cheaper with less risk. But choosing the right mediator comes down to you asking the right questions and getting a sense that you can trust him or her to do the job correctly. Best of luck!