Some individuals "new" to the mediation process ask a recurring question that seems to also arise with "relatively new" mediators, i.e. whether or not mediators should be knowledgeable in the subject matter that is involved in the controversy between parties to a mediation?

First, a little "refresher" may be in order. A "mediator," as provided in the American Arbitration Association, American Bar Association, and Society of Professionals In Dispute Resolution "Model Standards of Conduct for Mediators" (hereafter "Model Standards") is defined in this multidisciplinary Code as one who "facilitates the resolution of a dispute by promoting voluntary agreement by the parties." A mediator guides the parties to their settlement. While this definition specifies the function or role of the mediator, some could argue that it does not seem to clearly answer the question. This note will explore this often asked question--which is also important to mediators--and "suggest" an answer!

While nine Standards are enumerated in the Model Standards which are directed, in part, to serve as a "guide for the conduct of mediators," they should also be useful and informative for all. For example, Standard IV addresses "Competence" wherein "A Mediator Shall Mediate Only When the Mediator Has the Necessary Qualifications to Satisfy the Reasonable Expectations of the Parties." Re-read that Standard! What does it mean to you? What does it mean to customers of the mediation process? The Comments under that Standard touch on types of mediator information that should be made available to the parties and includes relevant training, education, and experience and "when appointed by a court or institution, the appointing agency shall make reasonable efforts to ensure that each mediator is qualified for the particular mediation."

While other Standards address distinct and equally important topics, including impartiality in conducting mediations as well as conflict of interest obligations, the focus herein is on qualifications. Consistent with the premise that a settlement "belongs" to the parties ("self-determination"), the Model Standards also establish that the parties have the freedom to select the mediator—the principle of a "customer/user/party driven" process has been embedded in those Standards. However, the parties must be satisfied as to his or her qualifications. What are the parties expectation in this regard? What do the parties expect in training, education, and experience? A mediator must be able to satisfy the parties expectations "that she or he has the competency to mediate effectively." An "effective mediation" is emphasized and that is part of the important "key" to finding the answer to the question—the parties expect mediators to have the requisite level of "competency to mediate effectively," i.e. to facilitate the resolution of the dispute.

Accordingly, a mediator must clearly possess the facilitation skills necessary to satisfy the parties, i.e. customer, expectations toward the goal of achieving a voluntary settlement. And this "may" suggest expertise in the subject matter in that dispute. For example, if a mediator is to be called upon to do any or all of the following situations in an effective manner, should "subject matter" expertise be at the forefront?

Provide that remedial dose of "reality check" for the parties by going to the strengths/weaknesses. Assistance in identifying and understanding each of parties underlying interests and views.

Being an "effective" communicator during the course of the mediation.

Explore new, creative, and innovative alternatives through "options" or opportunities as settlement possibilities.

Structured mediations.

Technical/proprietary information is critical to the process.

Trade, professional, and/or legal aspects are important.

Long term, historically based issues.

Multitude of (substantive) variables in reaching a settlement.

Multiparty complex mediations.

Strategic and global disputes.

Finally, recent data from a regional office of a major mediation provider reflects that ninety-five percent of the mediations filed resulted in a request for a list of mediators with subject-matter expertise as a prerequisite. This is what the customer or parties want!

Consequently, the mediator biographical information data on file with mediation providers should be "continuously" reviewed by mediators in order it reflects the current "subject matter" experience. And, the parties and their counsel should review those bios and ask questions. If a mediation case manager is available, he/she may also assist the parties by suggesting mediators with strong mediation process skills who may be more suited in mediating the dispute when a "subject matter" expert is not readily available.

However, may we suggest that "the" most relevant question is, "what is most important for a particular dispute, subject-matter experience or mediation process skills?" Is the answer the same in all disputes? If the dispute focuses on complex industry practices, or some of the situations noted above, where bringing an outside mediator up to speed would hinder the process, then subject-matter expertise may be the first priority. However, if the dispute concerns standard business contract practices or involves a low claim amount, then a mediator with good process skills may be sufficient and oftentimes may be better because he/she will most likely be in a position to see the dispute from a different perspective and see "all of the (necessary) trees!"