Mediation Day: Who is your Mediator

We’ve covered background and preparation. Ideally, you've worked with your mediator before or had a pre-call outlining how the day will go.

But ideal scenarios are rare.

Often, you're headed into mediation having never spoken with your mediator, with no idea who they are.

Who are mediators?

Mediator backgrounds generally fall into three buckets: Former Judges, Former Practitioners, and Professional Mediators.

In my area of practice, we rarely (if ever) see Professional Mediators who have never practiced law before. They exist. I just haven’t encountered them in employment, class, or complex business disputes.

The Evolution

When I began practicing, almost all mediators were Retired Judges. Mediations usually happened close to trial. The days ran more like a mini-trial or arbitration. Combative joint sessions were common. Parties saber-rattled. Judges asked questions with both sides in the room. Aggressive evaluation dominated.

This approach is increasingly rare. As judges became sophisticated mediators (not just retired judges), facilitation gained favor. Mediation now happens at all stages of a case’s life, not just the courthouse steps.

This shift coincided with more Former Practitioners becoming full-time mediators. They brought not only subject-matter expertise, but also intense client focus.

As mediation use has exploded, demand for mediators versed in dispute resolution theory increased. Once a retirement path, mediation is now a serious (and competitive) profession.

The Governing Rules (Or Lack Thereof)

Demand for mediators has far outpaced regulation.

Until recently, there were few rules governing who could call themselves mediators, what training (if any) was expected, or what disclosures clients needed to receive.

California now requires minimum disclosures, although those address strict confidentiality more than anything else. (See, Cal. Evid. Code § 1129, ADR-200, CRC 3.854).

ABA Opinion 518

ABA Opinion 518 (October 2025) attempts to address a lawyer’s duties when acting as a third party neutral. Although well-intentioned, this opinion is hardly clear.

It requires that a lawyer-mediator “should not state…that a proposed settlement is in the party’s best interest.” Yet, in the same paragraph, it allows the lawyer-mediator to “of course, provide truthful information that helps the parties to conclude for themselves, or even makes it obvious to them, whether a proposed resolution is in their best interest, given their objectives.”

The opinion raises obvious questions:

·       Does this prohibit a mediator from giving an honest opinion regarding the benefits of resolution?

·       Does it bar a mediator from supporting a party’s decision to settle?

·       How exactly does one make it “obvious” that settlement serves a party’s interests without saying so?

In the short term, I doubt this Opinion changes mediator behavior. Enough wiggle room exists that seasoned mediators are going to continue doing what they’ve always done, if they read the opinion at all. There is also no clear enforcement mechanism.

That said, the opinion may influence future mediation training. And if training becomes required, the opinion’s overall goals (requiring that mediators be judicious in the exercise of soft power, instead of blind bullies cajoling the parties into settlement) may be achieved. I hope it doesn't lead to strict, yet overly general, conduct prohibitions.

Jeff Kichaven has offered a more thoughtful and optimistic take on the opinion, and it’s well worth reading.

California Certification

As of this writing, California still has no mandatory training or certification requirement for mediators. Business and Professions Code section 6173 required the state bar to create a “voluntary” certification program and a “Working Group” has been created. It sounds like a committee is doing what committees do: thinking about it.

In short: the rules governing mediator conduct remain sparse. Existing opinions are vague and largely unenforced. In practice, the strongest constraint on mediator behavior is reputational: the need to build and maintain a book of business.

Panels: What they Tell You (and What They Don’t)

Most attorney mediators belong to panels, either court panels or private ADR panels.

Private Panels

For private panels (JAMS, Signature, AAA, ADR Services, Judicate West, etc.), know that all mediators are independent contractors. I haven’t experienced a “house style” associated with a particular panel.

On any panel, you’ll find great mediators and mediators you might not use again. As the old saying goes, you hire an attorney, not a firm. The same is true for mediators.

Mediators join private panels (and pay a flat rate or percentage of their fee to the panels) for administrative help, marketing, and for physical office space access.

Historically, some of these organizations offered a more collaborative office environment. Since the pandemic, many mediators report that offices are quieter, and feeling like a free agent is more common.

Independent Mediators

Other mediators remain fully independent. They may maintain a separate non-ADR practice, prefer to control their own marketing and administration, or no longer see the value in paying a significant percentage of their fee to a larger organization. Like panel mediators, you get great independents and not-so-great ones. Generally, independents are comfortable with marketing, branding, administration, and the business side.

Court Panels

California state and federal courts maintain mediation panels, staffed by mediators who volunteer their time. These panels require minimum qualifications, often including:

·       40 hours of mediation training

·       A minimum number of mediations conducted

·       References from attorneys or judges

Membership on a court panel at least signals that the mediator has passed through some baseline screening.

What Panels Tell You

In short: panel affiliation alone tells you very little about how a mediator will actually conduct your mediation.

Who Your Mediator Should Be

If you’ve never worked with a mediator before, and they don’t hold pre-calls, you’re going to spend the first hour or so of the mediation figuring them out.

You’re trying to assess whether you need to adapt to their style, or whether they are prepared to work with you toward resolution.

Most specifically, you need to figure out if the mediator acts like:

·       An Evaluator or Quasi-judge, pushing settlement through gravitas and pressure (sometimes described less charitably as strong-arming or bullying), or

·       A Guide, focused on removing friction, building trust, and guiding the parties toward agreement.

My ideal: a mediator should be a “trust mechanism” solving the Prisoner’s Dilemma.

In most cases, both sides would be better off resolving their matter without going to trial. But a lack of trust and transparency pushes both sides towards aggressive litigation. A mediator’s role should be to step in, solve that communication/coordination problem, and allow the parties to find a path out of litigation through private resolution.

More abstractly, mediators should embody “Ethos” and the mediation day should embody “Kairos”.

Ideally, the mediator absorbs each party’s logic and emotion, refines it, and then has difficult conversations with character and credibility; ultimately delivering the right message, at the right time, guiding the parties to mutual resolution.

That may sound abstract, but in practice it’s the difference between a mediation that moves and one that stalls.

Next week, we’ll talk about my default structure for a mediation day and may get into the different types of offers you’ll likely see during a mediation.

Until then,

Monday x Morello Mediation.

None of this is legal advice. Your mileage may vary.