Why the Choice of Mediator Matters

The mediator is the single most important variable in any mediation. The process, the structure and the legal framework are all important, but in practice the outcome of a mediation depends more than anything else on the skill, experience and judgment of the person conducting it. A skilled mediator will find movement in situations that appear entirely deadlocked. An inexperienced or poorly matched mediator will fail to capitalise on opportunities that are there to be taken.

Choosing a mediator is therefore not a procedural formality. It is one of the most consequential decisions in the whole process. Yet many employers and employees give it remarkably little thought, accepting the first name proposed or the cheapest option available without considering whether that mediator is suited to the type of dispute, the personalities involved or the stage at which the dispute has reached.

This chapter sets out the key criteria for choosing a mediator in both workplace mediation and employment mediation contexts, and provides practical guidance on how to assess candidates.

Accreditation and Training

The mediation profession in England and Wales is not statutorily regulated in the way that the legal profession is. Anyone can call themselves a mediator. This makes accreditation and training credentials an important starting point in assessing any mediator.

The Civil Mediation Council (CMC) is the main recognised body for civil and commercial mediators in England and Wales. The Centre for Effective Dispute Resolution (CEDR) is one of the leading training and accreditation bodies, and CEDR-accredited mediators are widely regarded as meeting a rigorous standard of training and practice. For workplace mediation specifically, the Chartered Institute of Personnel and Development (CIPD) and ACAS both provide accredited training, and the International Mediation Institute (IMI) offers independent certification.

When assessing a mediator’s accreditation, the questions to ask are whether the accreditation is from a recognised body, how recently the mediator completed their training, and whether they undertake continuing professional development to maintain their skills and knowledge.

Experience in the Right Type of Mediation

Accreditation is a threshold requirement, not a guarantee of suitability. Beyond accreditation, the most important criterion is experience in the specific type of mediation you need. A mediator who has extensive experience in commercial disputes may have limited experience in the dynamics of workplace and employment conflict. A mediator who specialises in workplace mediation between colleagues may have limited experience of the legal and financial dimensions of employment mediation involving tribunal claims and settlement agreements.

The questions to ask about experience include the following.

• How many mediations has this person conducted in total?
• How many of those were in a workplace or employment context?
• What was the nature of those disputes? Were they more like yours in terms of the issues involved, the seniority of the parties and the stakes?
• What is their settlement rate, and how do they define settlement?
• Can they provide references or testimonials from parties who have used them in similar disputes?

Legal and HR Knowledge

In employment mediation particularly, a mediator with a strong understanding of employment law, tribunal procedure and settlement agreement mechanics will be significantly more effective than one without that background. They will be better placed to help the parties reality-test their legal positions, to understand the significance of the issues being discussed and to assist in identifying realistic settlement parameters. This does not mean the mediator should be giving legal advice, which is not their role, but they should be knowledgeable enough to facilitate an informed conversation.

For workplace mediation in HR or organisational contexts, a mediator with a background in HR, organisational psychology or people management may be better suited than one whose background is primarily legal. The nature of the dispute and the parties involved should guide the assessment.

Style and Approach

Mediators vary significantly in their style and approach. Some are primarily facilitative, meaning they focus on creating the conditions for the parties to find their own solution with minimal intervention. Others are more evaluative, meaning they are willing to express a view on the merits of the parties’ positions and to use that view to move the parties toward settlement. Both approaches have their place, and the right approach depends on the nature of the dispute and the preferences of the parties.

In workplace mediation, a facilitative approach is usually most appropriate. The goal is to repair a relationship and build a working agreement, which requires the parties to own the outcome themselves. An evaluative approach in that context risks undermining the process by making it feel more like a quasi-arbitration.

In employment mediation, particularly where legal claims are in play and settlement figures are being discussed, a mediator who is willing to express a realistic view of the parties’ positions and the risks they face on both sides can be extremely valuable. The ability to conduct a frank private conversation with each party about the strengths and weaknesses of their case is often what moves an employment mediation from impasse to settlement.

Fit With the Parties and the Dispute

Beyond credentials and experience, there is a dimension of personal fit that is easy to overlook but genuinely important. A mediator who is instinctively trusted by both parties, who reads the dynamics in the room accurately and who can manage difficult personalities and strong emotions effectively will be more successful than one who meets every formal criterion but does not connect well with the people in the room.

It is legitimate to ask a proposed mediator for a brief preliminary conversation before committing to their appointment. This allows both parties, and the mediator, to assess whether the fit is right. A good mediator will welcome this conversation and will use it to understand the nature of the dispute and the parties’ priorities before the process begins.

Practical Considerations

Fees

Mediator fees vary considerably. In workplace mediation, fees typically range from several hundred to several thousand pounds for a day’s mediation, depending on the mediator’s experience and the complexity of the case. In employment mediation involving tribunal claims and settlement negotiations, fees will generally be at the higher end of the range. The cost of a mediator should be weighed against the cost of the alternative, which in most cases is significantly higher.

Location and format

Mediation can be conducted in person, online or in a hybrid format. For many workplace and employment disputes, in-person mediation remains preferable because the physical presence of both parties, and the ability to read body language and manage the space between them, matters. However, online mediation has become increasingly well-established, particularly since the pandemic, and is a viable option in many cases, especially where the parties are in different locations.

Availability

A good mediator is often in demand. It is worth checking availability early, particularly if there is a hearing date or a procedural deadline that creates a natural target for when the mediation should take place.

Robin Somerville is a CEDR-accredited mediator with extensive experience in workplace and employment mediation. Contact Robin to discuss your case and whether he is the right fit for your mediation.

Important Disclaimer: This page is provided for general information purposes only and does not constitute legal advice. Nothing on this page should be relied upon in respect of your legal rights or obligations. Before taking or refraining from taking any action in connection with a workplace or employment dispute, you should obtain advice from a qualified solicitor or barrister with relevant expertise. If you would like advice on your specific situation, contact Robin here.