How Consumers Hire a Mediator

Some of the most personal disputes you might encounter, like divorce or separation, can be stressful when they go through the court system. Many people find working with a mediator can make the process easier and more amenable to everyone involved.

So, how do consumers go about finding a mediator? Below, we offer an overview of what happens in these sessions and what questions someone might ask upon searching for a mediator.

What’s a mediator?

A mediator is a neutral third party  who helps two sides negotiate an agreement. The mediator doesn’t advocate for either side. Instead, they help the parties to come to a resolution they can both accept.

Mediators who work in the court system typically need some training or certification, but requirements vary widely. In general, a mediator needs to have specific knowledge of the subject matter of the mediation, such as family disputes, construction contracts, or insurance.

What happens in mediation?

Even though mediation is different from being in a courtroom, it usually follows a general structure.

All parties will be together in a room. The mediator introduces themselves and lays out the goals of mediation. They also offer a roadmap of how the proceedings will unfold. Then, each side presents their understanding of the issue and what’s at stake. The mediator might then encourage the parties to speak with each other, but this does not always occur.

The mediator might caucus privately with each side. They might go back and forth between the sides to convey offers for resolution. After these private caucuses, there might be another session of joint negotiation.

In the final stage, the mediator puts the final resolutions in writing and asks the parties to sign it. You have the option to have your lawyer review the agreement before you sign. If the parties don’t reach a resolution, the mediator might discuss the possibility of meeting again at a future date. 

Mediation is private and confidential. In general, what’s said in mediation can’t be used in later legal proceedings. 

What’s the difference between a mediator and an arbitrator?

Many people think of mediation and arbitration as similar processes. However, there are key differences between a mediator and an arbitrator. 

A mediator is neutral and helps the parties to come to an agreement. An arbitrator hears evidence from both sides and decides upon a resolution. An arbitrator’s decision might be binding on the parties. While parties to mediation can choose whether or not to accept the final agreement. 

Arbitration commonly happens when parties to a business contract make provisions for arbitration in that agreement. It is therefore agreed to as part of the business arrangement: as a way to resolve disputes instead of going to court. 

In some states, a court may impose mandatory arbitration in certain types of cases. 

When should you consider hiring a mediator?

In some legal areas, such as family law, courts might require parties to go through mediation. Even if you don’t have to work with a mediator, you might choose to do so because there are several potential benefits:

• It is confidential
• It can be faster than court
• Both parties have more control over the outcome
• Both parties can come to a mutually acceptable agreement
• It might contribute to greater levels of understanding and reduced hostility

Mediation doesn’t always work perfectly. But many people find it provides a more satisfactory outcome. If you try mediation and can’t come to an agreement, you can usually still go to court to get a resolution. 

Where can you find a mediator?

You have several options to find a mediator. If you are seeking mediation as part of a court process, your court might have a Mediation Coordinator. The state courts might also have a directory of certified mediators in your area. 

Other options are to find out about mediators through word of mouth. This is simply talking to others who went through mediation and had a positive experience. You can also access online directories of mediators to produce a list of potential names. 

If you have an attorney, they might also be able to refer you to a mediator. 

What criteria should you use to choose a mediator?

Since mediators come in all shapes of sizes, you might focus on a few criteria to decide which ones might be right for you. You might consider:

• Areas of focus. Ask if the mediator generally works on your types of legal cases, for example, child custody, divorce, or business disputes.
• Qualifications. Ask the mediator where they received training. The certification for mediators varies widely and you might choose one that has a specific educational background.
• Experience. Ask the mediator how long they have acted as a mediator and how many cases they have worked on.
• Approach. Although mediators are always neutral, some are more hands-on than others and will take more overt steps to bring the parties together.
• Cost. Mediators typically charge fees by the session or the hour. Discuss these details, including when any fees (such as deposits) are due and how they are split between parties.

Many mediators offer a no-cost orientation session where they will talk to you about their services. You can use this opportunity to assess your comfort level with the mediator and decide if you want to hire them.

Can you have a lawyer and a mediator?

You can have a lawyer and a mediator. You are generally not required to have your lawyer with you during mediation, but you might choose this option. 

If your mediation results in an agreement, you might want to have a lawyer review the agreement before you sign it.

Find out if mediation is right for you

Mediation can be the right option for consumers if they want a private forum to come to an agreement, with the help of a neutral third party. Finding the right mediator is critical, and we’ve discovered that many consumers use resources like word-of-mouth and court directories to find the right person. Consumers use our Q&A forums on Avvo.com to ask questions about mediation, and expect quality recommendations from vetted lawyers.