How to choose a mediator

Whether the mediator should be a lawyer

The first question parties ask is usually about credentials, and it is the one most often answered by reflex.

Mediators come from many professions. The Centre for Effective Dispute Resolution, whose audit is the most consistently maintained survey of the civil and commercial mediation market anywhere, found that sixty-one percent of the most experienced mediators are qualified lawyers in its 2025 Mediation Audit. Those figures describe the United Kingdom rather than the United States, and the shape they show is familiar. A clear majority of seasoned commercial neutrals are lawyers. A substantial minority are not, and they include accountants, construction professionals, business consultants, and people who have spent careers inside operating companies.

That minority is the part worth taking seriously. Where a disagreement turns on contractual interpretation, on a limitation of liability provision, or on what a court would probably do with a weak claim, legal training earns its place in the room. Where it turns on an operational failure, an accounting dispute, or a relationship between two executives who can no longer speak to one another, a neutral from another background may serve the parties better.

A commercial dispute frequently contains both. The useful question is therefore which half is actually blocking resolution, and it is worth asking plainly before a name is proposed.

Subject-matter fluency against process skill

These two are often discussed as though a party must choose between them. In practice they do different work and the balance shifts with the matter.

Process skill is the ability to run a day. It covers sequencing the conversation, managing the caucus, reading when a party has moved and when it is posturing, holding a room when the first offer lands badly, and knowing when to press and when to let silence work. It is the larger part of the craft and it transfers across subject matter.

Subject-matter fluency changes the economics rather than the outcome. A neutral who already understands entitlement models, earnout mechanics, or service level measurement does not spend the morning being educated at the parties’ expense. That fluency also lets a mediator test whether a proposed remedy will actually function, which is a different contribution from helping the parties agree on one.

Neither substitutes for the other. A neutral with deep industry knowledge and no process skill produces an expensive seminar. A neutral with excellent process skill and no vocabulary for the dispute produces a day of translation. The strongest choice for a technical commercial matter is someone who arrives fluent and then runs a disciplined process, which is a narrower field than it first appears.

Evaluative and facilitative, and why the labels mislead

Most guidance on choosing a mediator asks parties to pick a style. The distinction is real and the labels are less useful than they sound.

A facilitative neutral helps the parties reach their own resolution and declines to offer a view on the merits. An evaluative one will say, when invited, how a claim looks from the outside and where a position is weaker than its holder believes. Described that way they sound like different professions.

In a commercial mediation they are generally the same person at different hours. A day that opens evaluatively tends to harden positions before anyone has moved. A day that never becomes evaluative can leave a party holding a valuation nobody has tested. Experienced neutrals move between the two deliberately, and the transition is a judgment about timing rather than a statement of identity.

The question worth asking a candidate is therefore not which style they practice. It is when they would offer a view in a matter like this one, and how they would deliver it to the side that will not want to hear it.

Panel or independent

Parties frequently assume an institutional panel signals quality and an independent neutral signals its absence. Neither inference holds.

A panel supplies administration, a published roster, and an appointment mechanism that functions when the parties cannot agree between themselves. Where a contract names an institution, or where relations have deteriorated to the point that agreeing on a name is its own dispute, that machinery is genuinely valuable. Institutional panels also carry conflict-checking processes that an independent practice must run for itself.

An independent neutral is usually engaged more directly, with fewer administrative layers and more flexibility on timing, and the parties speak to the person who will actually conduct the session rather than to a case manager. Many neutrals are both, holding panel appointments while also accepting matters directly. Ellen Kim sits on the CalARB and CPR rosters and takes matters independently.

The affiliation is a weaker signal than the person. A roster establishes that somebody met an institution’s threshold. It does not establish that they are right for this dispute.

The questions worth asking a candidate

A conversation before appointment is ordinary practice and costs nothing. Six questions do most of the work.

How many matters resembling this one has the candidate handled. What usually causes matters of this kind to settle. What usually prevents it. How would the day be structured, and what happens before it. Does the neutral stay engaged after the session closes. How are fees charged, and by whom are they borne.

The second and third questions are the revealing ones. A candidate who answers them concretely, with the failure modes named rather than described in the abstract, has seen the pattern enough times to recognize it. A candidate who answers them in generalities may still be excellent and has not yet demonstrated it.

Availability belongs on the list as well, and it is the practical constraint most often discovered late. A neutral who cannot convene for eleven weeks is the wrong choice for a matter that needs resolving before a quarter closes, however well suited otherwise.

Where another neutral is the better choice

A page of this kind is more useful when it says plainly where it does not apply.

A matter that is principally a family or estate dispute, an employment matter requiring a specific statutory background, or a construction claim turning on delay analysis is better served by a neutral who works in that field continuously. The same is true where a party requires a mediator with a particular language or a specific cultural fluency that a candidate does not hold. Subject-matter depth is not decorative in those matters and a generalist will feel the absence of it by mid-morning.

Where the parties need a decision rather than an agreement, mediation is the wrong instrument regardless of who conducts it. That comparison is set out in mediation vs. arbitration.

How a conversation about a matter begins

Parties and counsel reach Cadenza Resolutions to discuss a possible appointment, frequently before deciding whether to mediate at all.

The first step is a short, no-cost conversation about the dispute, the parties, the posture, and whether the commercial relationship is intended to survive. Conflicts are checked before anything further. Where the matter would be better served by a different neutral, that is said in the same conversation rather than after an engagement letter. Appointments are accepted across California, in person in the San Francisco Bay Area and by secure video elsewhere. For the wider category these matters sit within, see commercial mediation, and for what follows an appointment, how to prepare for a commercial mediation.