A Look at What a Mediator Does
The importance of mediation in resolving disputes cannot be understated. A mediator acts as an impartial third-party to assist two or more parties in resolving their conflict. In the legal context, litigation can be time-consuming and costly, often resulting in a lack of closure, animosity and lingering negative feelings. Mediation, on the other hand, is a constructive process that allows the parties to negotiate a solution, with the help of the mediator, that is amicable and tailored to their specific needs and interests. The relationship between the mediator and the parties is crucial to the success of the process. A good mediator should act as a catalyst to form consensus and avoid a situation where one party feels bullied into acceptance of a conflict resolution. A mediator is not a judge and does not decide the outcome. The purpose of a mediator is to lead the parties towards a resolution that is mutually beneficial and acceptable to all . While mediators may specialize in different types of law, it is again important to emphasize that the mediator must act as an impartial facilitator for all parties involved. Thus, the legal background of a mediator may or may not be relevant. While there are many forms of mediation in law, two of the most common include facilitative mediation and evaluative mediation. In facilitative mediation, the mediator uses specific and structured questions to assess the needs of each party and to brainstorm possible solutions that will meet those needs without taking a position and without suggesting one course of action over another. In evaluative mediation, the mediator takes a more active role in determining the solution by evaluating the positions of the parties and offering his or her own assessment about the relative strengths or weaknesses of their cases, with the goal of pushing them, somewhat firmly, towards a common resolution. There are advantages and disadvantages to both approaches; however, which approach a mediator uses will depend on the particular circumstances of the conflict and the parties involved.
Required Training for Mediators
The educational requirements for mediators in the legal field vary depending on the industry standards. In the United States, a bachelor’s degree in law or a related field is typically the minimum requirement, though many states also require certification or licensure at various levels. Additional certifications specific to the area of mediation in which the mediator works, such as certified family law mediator are standard. Certain states, like California, allow individuals to act as court appointed mediators if they have passed a written exam and completed a specific internally-defined education track, such as 40 hours of mediation training. Georgia has a similar certification process.
Canada also has an established educational track for mediators, but there is no national policy defining what those tracks must consist of. Ontario, for example, requires a minimum of 22 hours of training for individuals wishing to act as a family mediator and encourages certification through the Family Mediation Canada (FMC).
Some states and countries also differentiate between mediators and conciliators. While both act as neutral third parties that work to resolve conflict between parties, mediators tend to be trained in conflict resolution strategies when they pursue degrees, while conciliators are typically lawyers with more experience in the law and court system.
Internationally, large bodies such as the European Union, which adopted the "Mediation Directive" in May 2008, have begun moving towards standardized certification processes for mediators. The Directive encompasses common standards and rules for mediators, ethical standards for member states, confidentiality of mediations and enforcement of completed settlements.
Key Skills Needed for Successful Mediation
To become a successful mediator, one must possess a broad set of skills to ensure that they can adequately address the needs of every client and facilitate a successful mediation. As a mediator, you must be able to communicate effectively with people of all walks of life, including business owners, executives, lawyers and other professionals. Because mediation requires more than just a good deal of legal knowledge, you will need to hone your knowledge and understanding of the various issues that can arise during a mediation session. First and foremost, a successful mediator must be an exceptional communicator. You will need to possess strong active listening skills and the ability to make others feel heard. In order to facilitate meaningful dialogue between parties, you will need to be able to carefully listen to what each party has to say and repeat points back to them in a manner that demonstrates your understanding. In addition to communicating issues and points of view through active listening, you should be able to articulate ideas, solutions and the concepts drawn from the parties’ opinions in a succinct and easy-to-understand manner. A skilled mediator should also possess good body language and give off an approachable aura so that all parties feel comfortable in the mediation process.
Certification and Licensure for Mediating
Certification and licensing is a relatively new and developing area in the mediation profession, with primary development at the state level. The requirements for certification and licensing vary significantly among the states. States that require certification include California, Florida, North Carolina, Utah, and Washington. Certification is generally done through a certification board established by the state licensure or certification and regulatory agency. In California, two different agencies are involved, the AOC (Administrative Office of the Courts) and BEAR (Bureau of Equalization and Reclamation), the first for family law matters and the second for property tax and valuation. Some states, such as Connecticut, have yet to decide whether certification will be mandatory (or not), while others, such as Massachusetts, have made certification optional rather than mandatory.
In addition to state certification, the National Certification for Mediators and Arbitrators was launched in 2017 to create a comprehensive, uniform, and standardized national certification program for mediators and arbitrators. Candidates who successfully complete this program will be certified by a panel of accomplished mediators and arbitrators from across the United States. This certification program covers a wide range of dispute types including personal injury, employment, construction, insurance, community, consumer, neighbor-to-neighbor, tribal, and appellate disputes.
Technically, there is no certification or license for a business mediator, although there are some organizations that provide credentials for specific types of mediation (such as family law mediation), which do not vary by geography. Nationally-recognized certifications or credentials are offered by groups such as the American Association for Justice (AAJ), the Association for Conflict Resolution, the Family Mediation Association, the American Bar Association (ABA), and the Attorney-Mediators Institute (AMI). Some state bar and law societies also offer certifications to members, and the ABA has also introduced a designation for mediators called the Advocate-Mediator (AM). Even though it is not an official designation, there is a credentialing program for mediators through the Association for Conflict Resolution.
Gaining Experience as a Mediator
Profound experience in the world of mediation requires years of practice. Aspiring mediators should build their experience by starting to assist professional mediators as early as possible. Opportunities to collaborate with mediators are numerous, and with the growth of the mediation industry, the need for assistants will expand as well. Internships can often be negotiated with mediation firms, or smaller independent mediators may be open to discussing a mutually beneficial arrangement. Joining community-based services such as the Neighborhood Justice Center can also provide unparalleled experience in the field .
Schools that produce law students, social workers, teachers, psychologists and those working in the mental health profession will all have students who are interested in conflict resolution. Networking is a key step to being able to jump on opportunities that will arise regularly in the future. There are also a number of organizations which have been founded to improve the level of professionalism found in the mediation industry, and to help people access services through the resolution of conflict. An example of one of these organizations is the International Academy of Mediators; others include Alternative Dispute Resolution and Family Mediation Canada. These organizations present ideal opportunities for networking, experience and internships.
Career Options for Mediation Professionals in Law
The career opportunities for mediators are extensive, as the demand for their services spans vast sectors of society. From the largest law firms to bustling government offices, to small family-owned businesses, and even within the non-profit sector, everyone can benefit from a skilled mediator.
Large law firms are increasingly using mediation as a cost-effective way to achieve desirable settlements for their clients. Law firms are often looking for attorneys with active mediation certifications because they add value to the firm by helping them save money. Law firms also recognize that groups of attorneys within their own firms can benefit from a neutral mediator to help them re-establish working relationships among themselves.
Similarly, government agencies are increasingly reliant upon mediators to help themselves and their agents resolve conflicts before they go before an administrative judge or court judge. Surveys have shown that mediators, through their experience in the legal process, can often achieve a very high settlement rate, thus saving the government thousands of dollars.
Private practice mediators offer their services on a contract basis. They do their marketing and advertising, and receive referrals from their business clients and from other professionals in the community that they serve. Many private practice mediators are attorneys who provide conflict resolution services to their clients in addition to legal services. Many are also licensed mental health professionals who offer mediation services as part of their practice. Some operate part-time as adjuncts to their existing professional practices. Others have moved into full-time mediation practices as their primary source of income.
Pros and Cons of Working as a Mediator
In any career, there are challenges that must be overcome regardless of how much you love the job. One of the main challenges mediators face is the fact that sometimes a mediation just does not work out as the parties involved cannot reach an agreement. Besides the disappointment of not helping the parties in the case, many mediators find it difficult to keep their emotions in check and be unbiased when the case is not put to a good conclusion. They must keep a professional demeanor even when the parties involved become upset. This is not always easy to do. Many mediators work as independent contractors when working on a case basis. They can spend a lot of time and energy on a case only to receive no compensation for their time. Mediators can charge low flat rates or very high hourly fees, but many people do not use them as much as they should or can. When times are rough and people want their judges to work things out in the courtroom , it is hard for mediators to make a living. In addition to the pay difficulties, many independent mediators must head to an office or suite that they must rent and pay for in order to conduct the mediations. So not only do they have to keep emotions in check, make sure they keep cool with customers that will not hire them due to budget or monetary constraints, they must also put out money up front with nothing promised in return. These challenges are nothing compared to the great reward that can be found after a mediator works very hard for a resolution. Many mediators have found that it is the most rewarding part of their work. To help people find a solution they can both agree upon, allowing them to walk away satisfied and with smiles is a huge plus to the hard work that people put in to negotiate and mediate.