Choosing the Right Mediator: Why Competence, Not Convenience, Should Guide Selection

Mediation has become a cornerstone of Canada’s civil justice system. Whether driven by mandatory programs or chosen voluntarily, it offers parties an efficient, relationship-focused path to resolution. And with the Ontario Civil Rules Review poised to expand its role, mediation’s prominence is only set to grow.

I am still surprised when I am retained as a mediator by counsel who I have never worked with in the past nor even spoken to. While I am happy to have the opportunity, it concerns me and raises a crucial question: how are mediators being selected? Are lawyers choosing mediators based on their ability to manage the process effectively, or simply because they’re familiar or convenient?

Too often, it seems that mediator selection is treated as a routine administrative task or checkmark on a case management form. This approach overlooks the extremely important impact a skilled mediator can have on process efficiency, party satisfaction, and substantive outcomes.

One Size Does Not Fit All: Tailoring the Choice

Every dispute has its own unique and often complex dynamics. Selecting the right mediator should not be about picking the first available name from a list. It requires thought and understanding about the context of the conflict and the skills needed to navigate it. But that takes time and lawyers are busy.

As an example, a complex commercial dispute may need a mediator who understands industry jargon and transactional events. A family breakdown or interpersonal conflict calls for emotional insight and sensitivity.

Some matters require subject area legal knowledge. However, process management, trust-building, and conflict dynamics often matter more than subject-matter expertise. These are not soft skills, they are essential competencies that come about through training and practice, not osmosis.

Mediation Styles: Facilitative, Evaluative, and Everything in Between

Style matters. A mediator’s approach can shape the trajectory of a session—and its outcome. Here’s a quick breakdown:

• Facilitative mediators help parties uncover their interests and generate their own solutions.
• Evaluative mediators offer opinions, reality testing, and sometimes even settlement suggestions.
• Many experienced mediators blend both styles depending on what the situation demands.

Most disputes benefit from a flexible, blended approach. The most competent mediators read the room, shift gears as needed and stay responsive to party dynamics. That adaptability often makes the difference between resolution and stalemate.

What Truly Makes an Effective Mediator?

Neutrality alone does not make a mediator effective. The real work lies in shaping productive conversations, calming volatility, and helping people think differently. In my experience, the most effective mediators share certain traits

• They build trust early and maintain it with both parties and counsel.
• They listen actively, without rehearsing the next point.
• They stay grounded under pressure.
• They show empathy without taking sides.
• They show curiosity.
• They are persistent and creative.
• And they follow up when resolution needs time to mature.

These are not extras, they are essentials in successful mediation.

Legal Experience vs. Mediation Competence: A Common Misstep

There is a persistent myth in the profession: that a seasoned lawyer or retired judge naturally makes a good mediator. But it is not always the case.

Legal knowledge and experience are valuable, yes. But mediation is not about making a decision for the parties. The skillset is different than adjudication. Instead of ruling, mediators facilitate. Instead of persuading, they manage dialogue. Without training, even the most experienced counsel may default to offering opinions too soon—closing off creative, interest-based outcomes.

Mediation expertise involves:

• Thoughtful process design.
• Negotiation skills around interests, not just positions.
• Emotional insight and neutrality.
• Cultural awareness.
• Ethical behaviour.
• Familiarity with online dispute resolution technology and the rise of Artificial Intelligence.

Credentials That Matter: Designation Over Certification

Mediation is not a formally regulated profession in most jurisdictions in North America. That means anyone can call themselves a mediator, whether or not they have had a day of training. This is where meaningful designations come in.

The ADR Institute of Canada (ADRIC) offers two important “generalist” designations for mediators:

• Qualified Mediator (Q. Med.): Requires substantial foundational training, observed simulations, and ethical compliance.
• Chartered Mediator (C. Med.): Recognizes extensive practice, peer evaluations, and continued professional development.

These are not just letters after a name, they reflect a serious commitment to the craft. There are also family mediator designations available through various organizations. They also require professional liability insurance, which offers additional protection for parties and counsel alike.

Common Pitfalls in Mediator Selection

Dispute resolution is often not achieved because the mediator was not the right fit. Here are some common mistakes to avoid:

• Choosing based on name recognition instead of relevant skill.
• Prioritizing subject-matter familiarity over facilitation ability.
• Failing to discuss mediation style preferences in advance.
• Overlooking the importance of emotional intelligence.
• Assuming all mediators are equally qualified even though they are not.

Where to Look and What to Ask

There are reliable online resources available to help you identify qualified mediators including directories such as those maintained by the following:

• ADR Institute of Ontario (ADRIO)
• ADR Institute of Canada (ADRIC Connect)
• Canadian Academy of Distinguished Neutrals (CADN)
• Family Dispute Resolution Institute of Ontario (FDRIO)

These tools allow filtering by designation, style, language, and subject matter.

But even more important than which directory or listing you search for information is the process you use to make your decision on who to select as the mediator for your specific case. Use a structured framework to help. You should ask prospective mediators about:

• Training
• Membership in a professional ADR organization
• Designations (Q. Med., C. Med.)
• Relevant mediation experience
• Demonstrated skill with a facilitative or blended style
• Subject-matter understanding (if essential)
• Emotional intelligence and calm presence
• Can they work effectively with the personalities and power dynamics involved?
• Are they respected by peers, not just familiar to you?
• Are they actively engaged in professional development?
• Are they insured?
• Availability and fit with the case timeline

From Habit to Intention

Selecting a mediator is an important decision. Done well, it sets the stage for productive dialogue, timely resolution, and preserved relationships. Done casually, it can stall progress or even inflame conflict.

As mediation continues to grow in prominence, let us raise the bar on how mediators are chosen. We must move from convenience to competence, from habit to intention. That shift will both serve our clients and strengthen the mediation process and its utility on resolving disputes.