Choosing the right mediator

When I began mediating full-time in 1999, the field was relatively small. There were a few retired judges and some barristers holding themselves out as mediators. Today, I estimate that around 15 per cent of Australia’s 6,000 barristers, along with many solicitors, identify as mediators.

So how do you determine which mediators are competent and best suited for you and your clients?

In my view, the following characteristics are worth considering, and perhaps even rating, before making a choice.

Experience

Doing something for a long time does not automatically mean someone is good at it.

Experience does, however, allow a mediator to develop a repertoire of skills and techniques to tailor the process to the needs of the parties and the dispute.

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Experienced mediators are also less likely to be surprised. Someone who has mediated across a range of disputes and environments over many years has usually encountered most of the dynamics that arise in negotiation.

People skills

One piece of feedback I value most came from a commercial lawyer who told me he continued to use me because I could “speak with respect to anyone, from any walk of life”.

The ability to engage effectively with parties from very different backgrounds or cultures is often critical. If rapport and communication style matter to you or your client, do not overlook this quality when selecting a mediator.

Negotiation skills

Towards the end of many mediations, there is an uncomfortable moment where neither party wants to make the final concession. No one wants to appear weak or to give in merely for the sake of compromise.

At this stage, the mediator’s negotiation skills become crucial.

Can the mediator help parties move past impasse? Can they facilitate interest-based discussions rather than simply relaying positional offers, usually framed around money?

A skilled mediator will be able to assist the parties do both.

Specialist legal knowledge

Most experienced commercial mediators can facilitate discussions across a wide range of subject areas. Some, however, specialise.

Before choosing a mediator with specialist knowledge, consider whether that expertise is needed.

Are you and your client looking for a second opinion on the legal merits of the case? Or are you confident in your assessment of risk?

If it is the latter, you may prefer a mediator without strong subject-matter views to avoid the possibility of an unsolicited opinion that complicates negotiations.

Gravitas

Sometimes parties want a mediator with a certain level of authority or standing, someone who will impress a client or the opposing side.

In these situations, a retired judge or senior barrister may carry the gravitas that helps influence decision making. Gravitas sometimes does not come with people skills.

Energy and intervention

Mediators vary greatly in how actively they engage in the process.

Some take a very hands-off approach, seeing their role primarily as relaying offers between parties during private sessions. Some do not even conduct a joint session.

My personal view is that this approach does not always make the most of the mediation process, but there are cases where parties prefer to avoid direct interaction with the other side.

Other mediators take a more active approach. They “roll up their sleeves”, test arguments, support constructive offers, and help drive productive negotiations. For some disputes, this level of engagement is exactly what the parties need.

Cost

Proportionality matters.

Mediator fees can range from around $2,000 to $18,000 per day. Engaging a retired judge may not be proportionate for a Local Court dispute or a matter involving the return of a retail tenancy bond.

How do you assess these qualities?

Start with the mediator’s own description of their practice. Most have professional profiles that outline their experience and approach.

Then speak with colleagues who have used them. In mediation circles, reputation travels quickly.

NOT good reasons to choose a mediator

Personal relationships
Choosing a mediator because they are your friend is asking for trouble.

Public profile
A high profile does not necessarily translate into effective or specialist mediation skills. Unless the profile is based on the qualities discussed above, it may even be a disadvantage. Just because someone is well known does not mean they are the right mediator for your case.

Brute strength
I once heard of a colourful underworld figure who described himself as a mediator. His process reportedly involved bullying, threats, and “offers you cannot refuse”.

Unless you and your client enjoy being threatened, this is probably not a quality worth seeking.

Final thoughts

In 2026, mediation plays a far more significant role in litigation than it did 25 years ago.

Clients invest substantial time, money, and effort in preparing for mediation, so it makes sense to think carefully about what you need and the right mediator to meet those needs.

Choosing well can make a real difference.

Steve Lancken is a mediator with Negocio Resolutions.