As with many things in the Alternative Dispute Resolution (“ADR”) realm, there are many published articles and schools of thought as to whether it is beneficial for a mediator to be skilled in the subject matter of the dispute.1 In particular, there are those who opine that it is important (or even required) that the mediator have specialized knowledge of the subject matter that is being mediated, and others who argue equally strongly that a good mediator is solely the guardian of the “process,” and that the specialist skills required relate only to the management of the mediation itself.
In order to consider this question when selecting a mediator, it may be helpful to understand that there are different types of mediation. For this article, we consider only two types, but it is important to note there are others and ADR continues to undergo innovation (an example being Online Dispute Resolution as something distinct, being born out of the COVID pandemic).
In facilitative mediation, the mediator structures a process to assist the parties in reaching a mutually agreeable resolution. The mediator asks questions, validates and normalizes parties’ points of view, searches for interests underneath the positions taken, and assists the parties in finding and analyzing options for resolution. The facilitative mediator does not make recommendations to the parties, or give their own advice or opinion as to the outcome of the case. The mediator is in charge of the process, while the parties are in charge of the outcome.
Evaluative mediation is modeled on settlement conferences held by judges. An evaluative mediator still follows the process noted above, but also assists the parties in reaching resolution by pointing out the weaknesses of their cases, and opining on what a judge or jury is likely to do.
The above should not be thought of as compartmentalized but, more as a spectrum along which a particular mediation may fall. It is apparent that the type of mediation is relevant in considering what skills the mediator requires, including specialist subject area knowledge. For example, one point of view is that, in a facilitative model where the intent is for the mediator to be purely “hands off,” subject area knowledge is not necessary. It has also been argued that even in this model, subject area knowledge is vital as it is otherwise impossible to know what is fair or not fair as a mediated resolution. However, it could equally be argued, that the mediator’s role is not to determine “fairness” — that is the role of the participants.
In a more evaluative mediation, where mediators actively use their expertise to inform or even challenge parties, subject area knowledge may be of great assistance. On the other hand, seeking out a mediator with subject matter knowledge may defeat the purpose of a mediation based upon the ability of each party to convince a judge of the merits of their position — given the judge is unlikely to possess subject area knowledge.
In summary, as with many aspects of ADR, the answer to this question may well be “it all depends” (on both the circumstances and each parties’ own perspective).
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