I’m often asked how should parties select a mediator. It depends on who the parties are, what the dispute is, whether they have counsel, so there are a lot of different ways to choose a mediator. I think it’s very important for people to know who they are selecting as their mediator because that will be the person that will help them come to a
voluntary resolution of their dispute.
There are different kinds of mediators. Some mediators have substantive knowledge about the subject matter and might evaluating the different factual positions in the case. They might give evaluations of the legal issues, of the evidentiary issues, the factual disputes and give an evaluation to the parties which they might be looking for in terms of how the case could resolve in court versus trying to come up with a solution in mediation. That’s what we call a valuative mediator.
A facilitator, or “facilitative mediator” is one who really may or may not have subject matter expertise in the dispute, but is going to be facilitating conversations between the parties directly. In that kind of case, like a family dispute where you have an older family member who the adult siblings are struggling with how to help this older adult, how to manage their medical needs, their financial needs and those kinds … this is a family dispute where a facilitative mediator may be involved.
In that situation, the mediator, who may or may not understand the substantive legal expertise, is there to help the family members talk to each other when they are in dispute. Those are two different kinds of mediators. A third type of mediator is called a transformative mediator who wants to help the parties move from where they are stuck in anger and disagreement, moving into a different relationship with each other. Where they again might be useful in a family situation. Where they are going to have an ongoing relationship and want to really transform their relationship into a different paradigm. Those are the three kinds of
mediators.
