Caldwell & Kearns, P.C.
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Selecting a mediator: looking at the issue of neutrality

Mediation can be a very effective way to resolve disputes, but much of the power of mediation lies in the specific mediator the parties end up working with. Not all mediators have the same approach or equal skill in helping parties to resolve a dispute, so it is important to consider how to make the best possible selection.

It isn’t always possible in every dispute for each party to have a say in selecting a mediator, of course. In cases where mediation is part of a contractual agreement, one party—often the more powerful party—may reserve the right select the mediator. In cases where a mediator is selected by mutual agreement, though, the following considerations could be helpful.

First of all, the important thing to remember is that mediators have a duty to remain neutral in mediation a dispute, and so they owe an equal duty of care to all parties involved in the dispute. Selecting a mediator is not like selecting an attorney who will zealously advocate for your interests and seeks to protect your rights over and against the rights and interests of the opposing party.

Because mediators must, above all else, remain neutral in a dispute, it isn’t the case that a single mediator will be the best possible selection for any type of dispute. A mediator, for instance, might be perfectly capable of handling an employment mediation, but unable to confidently handle a divorce mediation because of his or her own experiences of divorce. Some factors that are beyond a mediator’s control may very well make it more challenging for that particular mediator to remain completely neutral in certain types of disputes, and this must be considered when making a selection.

In our next post, we’ll continue exploring this issue. 

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