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Dispute Mediation: Mandatory Assignment or Free Choice in Mediator Selection

  • Posted by: Ellen Kandell

A mortgage broker, upon learning about the various venues where I mediate asked, “Are you chosen or mandated?” This is an important and brilliant question and I’d like to explain the difference between the two forms of mediator selection and why this is important.

Mandated Dispute Resolution

Many institutions, largely federal government agencies and courts, as well as an increasing number of large corporations, have mandatory dispute resolution systems in place at present.   Two federal statutes, the Administrative Dispute Resolution Act of 1996 and the  Alternative Dispute Resolution Act of 1998, both passed by Congress in the Clinton Administration are largely responsible for the growth of federal sector dispute resolution.   Each agency’s program is a little different.  Some rely on the federal shared neutrals program which provides collateral duty mediators from different federal agencies at no charge.   Other agencies have one or more contracts with dispute resolution companies that run national or regional dispute resolution rosters.  In this case the contractor functions like a roster manager and chooses a neutral dispute resolution provider who is the right fit for the case and available.    So while the complainant generally chooses to participate in mediation in many federal programs a mediator is appointed to their case by the roster manager.   

If you want more information on this issue, the federal interagency ADR working group is a tremendous resource to learn more about dispute resolution systems in the federal government.

In Maryland most Circuit Courts have ADR roster managers who assign cases to mediators who meet the state requirements.  Parties have the right to opt out of the mandatory selection, as long as it is done in a timely fashion, usually within thirty days of the order for mediation.  They also have the right to choose their own mediator.

Free choice Dispute Resolution

Some federal agencies, such as the Department of Interior and the U.S. Environmental Protection Agency, both of which have been in the forefront of the alternative dispute resolution or ADR movement for over two decades, have comprehensive systems in place whereby parties to a conflict receive  bios of several mediators and can participate in the selection of a neutral who they feel will be able to help them resolve their dispute.

As mediation was growing in the federal sector, a similar movement was taking place in the business arena due to concern over the rising cost of litigation.  Corporate counsel  and their firms formed the International Institute for Conflict Prevention and Resolution  or CPR in 1979.    CPR runs of roster of dispute resolution providers who have met their criteria.   Toyota Motor Sales  is one of many companies that has  a very comprehensive dispute system  incorporating  choice in the selection of the ADR professional.

Why Choice is Important

Mediation  is a process  about self-determination. Each case is different and has its own nuances.  Trust is a fundamental part of the mediation process.  Each party to a mediation may desire to have their mediator possess certain characteristics or experience .  When parties participate in the selection process they have taken a first important step towards reaching agreement on the substantive underlying issues in the dispute.  It sets the stage for the dispute resolution process.

Ellen F. Kandell is a certified professional mediator and attorney with over 30 years of public and private sector experience. She provides mediation, group facilitation and training to diverse, national clients. Get in touch with her via email, LinkedIn, Twitter, or give her a call at 301-588-5390.

Author: Ellen Kandell

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  • Keller Shinholser

    Excellent explanation, very thorough. It is an interesting point about the trust issue and feeling comfortable with the process and therefore the outcome.