This is a useful first question, but it does not necessarily have to be decided immediately. In both administered and non-administered mediations, part of the service you should expect is that the process will be flexible and adapted to the parties’ specific needs. The provider institution or the mediator should be able to assist you in this.
If the dispute relates to a contract, there may be a mediation clause in it that specifies how a mediator will be chosen and a particular Mediation Provider that may offer a list of suitable mediators, recommend a mediator, or help to make the choice for the parties. The mediation clause may also provide that the mediation will be administered by and under a mediation agreement and code of conduct of a Mediation Provider. However, mediation is a flexible and consensual process - if the parties think these contractual rules are inappropriate, they are usually at liberty to agree to approach mediation differently.
Alternatively, a referral body, like a Court or other authority, may direct or suggest how a mediator can or will be chosen. This may be important if the parties need a settlement to be formally recognized by the Court.
Or there may be no contract with a mediation clause, and no referral body. The choice of mediator, and whether to use a Mediation Provider, may be entirely up to the parties. Some parties and professional advisers have developed internal mechanisms for mediator selection based in past experience and other criteria. Or there may be no guidance at all.
Administered and Non-Administered mediations
In administered mediations:
- A professional Mediation Provider manages all or part of the administration and case management aspects so that these can be separated from the dispute.
- Often the provider body operates under a set of rules or offers a mediation agreement that governs how the mediation is set up and conducted, confidentiality issues, impartiality of the mediator, the application of time/cost constraints, etc.
- The provider can select or recommend a suitable mediator to the parties, which can avoid the risk of the parties not agreeing in the choice of a mediator.
- A Provider usually charges an administration fee and may set the mediator’s fee and specify how these costs will be paid (e.g. shared equally by the parties).
- Parties can usually discuss case management issues/choice of mediator with the Mediation Provider either together or independently. While providers (but this also applies to mediators in self-administered mediations) cannot force parties to agree to anything, their neutrality can help ease communication between the parties and ensure all participants understand the process constructively.
Administered mediations can be particularly valuable where there are strong communication barriers between the parties, or where one or more of the parties is reluctant to mediate or to co-operate in a mediation, though these issues can also be overcome by mediators in non-administered processes.
In non-administered mediations:
- No provider or third party case management is involved, or if involved, merely helps the parties choose a suitable mediator but does not provide other case management services.
- The parties select the mediator themselves and agree with the mediator what rules, agreement to mediate and process will apply. Many mediators have model mediation agreements and rules that can apply or be adapted to the parties’ needs.
- The mediator performs case management tasks or shares them with the parties.
- Administration costs, if any, are usually part of the mediator’s fee.
- The parties have more control, and also more issues that need to be addressed.
One factor that may affect this issue is whether any deadlines apply. Must the parties try to arrive at a settlement within a given time frame, or are there any financial constraints on how or when the mediation should take place? In some situations, there may be a requirement that a mediation must occur in a certain manner, or using only mediators from a named panel or Provider, otherwise the settlement may not be legally enforceable. Identifying whether deadlines, budgetary constraints, and any legal requirements apply can impact on the selection and engagement of a mediator and whether an administered or non-administered process can or should be chosen.