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Choose the process first: mediation lets the parties decide whether to settle, while arbitration asks a neutral to decide the dispute and issue an award. Then compare candidates on impartiality, relevant experience, working style, preparation, and total cost. The right choice depends on your goals and on the agreement, court referral, program rules, and state requirements that govern your case.
Choose the process before choosing the person
In mediation, a neutral helps the parties communicate, identify interests, explore options, and negotiate. The mediator does not impose a result. A court may require attendance, but that does not by itself require either party to settle.
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In arbitration, a neutral arbitrator or panel hears arguments and evidence, then issues an award. The award may be binding or nonbinding, depending on the governing agreement and rules. If it is binding, the result is generally final and court review or appeal is limited. Check the terms before agreeing to arbitrate or selecting an arbitrator.
Mediation may suit parties who want to retain control of the outcome and are prepared to negotiate. Arbitration may suit parties who need a decision-maker and accept the consequences of an award. Neither process is automatically faster, cheaper, or better: costs, timelines, procedures, and rights depend on the dispute and the applicable terms.
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Define what the process needs to accomplish
Write down the outcome you want before evaluating names. Consider whether you need a negotiated settlement, an authoritative decision, a way to preserve an ongoing relationship, a particular timetable, or help resolving technical questions. Note any power imbalance, safety concern, emotional dynamic, or important non-monetary interest; these can affect both the process and the neutral’s suitability. The Hawaii State Judiciary’s guide recommends weighing goals, negotiation history, the dispute’s context, personal strengths and limits, timetable, and budget when developing a mediator shortlist.
How to evaluate any candidate
Impartiality and trust
Ask about conflicts, prior relationships with the parties or counsel, disclosures, and how the candidate handles perceived bias. Both sides need to be able to respect the neutral, even if they do not agree with every decision or recommendation. Ask people who have appeared before the candidate—including someone whose side did not prevail—about fairness, preparation, respectful treatment, and adherence to process, not just popularity.
Relevant experience and subject knowledge
Ask how many comparable matters the candidate has handled and what that work involved. A résumé title alone does not show how a neutral conducts a mediation or hearing. Match subject knowledge to the actual dispute: industry fluency may help with a technical matter, while familiarity with the governing legal area may be useful when legal issues are central. An arbitrator evaluates evidence and reaches a decision, so substantive competence may matter more in that role than it does for a mediator whose job is to help the parties negotiate. The ABA’s practitioner guidance also emphasizes communication and disciplined hearing management as role-specific considerations.
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Temperament and process style
Ask how the candidate handles strong personalities, interruptions, disagreement, and difficult news. A mediator should listen carefully, clarify issues, and keep both sides engaged; an arbitrator should manage the hearing consistently and even-handedly. Ask for a practical explanation of how the candidate would approach your type of dispute, without inviting a premature view on who should win.
Preparation and references
Find out which briefs and documents the neutral expects, when they are due, whether preparation time is billed, and how the candidate handles a large record. Practitioner Sara Khan Sigman advises looking beyond résumés and speaking with colleagues who have experienced a neutral’s work. Request references where appropriate, and ask about training, comparable cases, and written materials or sample work if relevant to the role.
Fees, availability, and logistics
Request a complete fee schedule rather than comparing headline rates alone. Confirm hourly or daily rates, minimum session length, deposits, cancellation charges, administrative fees, travel, hearing days, and preparation time. Ask about availability, remote or in-person format, and expected timetable. For arbitration, clarify whether there will be one arbitrator or a panel and how that affects fees and scheduling.
Questions to ask a mediator
Mediators may use different approaches. A facilitative mediator helps parties develop their own solutions; an evaluative mediator may discuss case strengths, risks, or likely outcomes. Neither style is a universal fit. Ask which approach the candidate uses and whether they can adapt to your needs. Strong evaluation may help parties test their positions, but it may be less suitable when the parties need a careful, supportive process or are negotiating important non-monetary terms.
- How do you structure a session, and how do you use joint meetings and separate caucuses?
- How do you address power imbalances or safety concerns?
- How do you help parties consider non-monetary terms as well as payment?
- What do you do if the session ends without an agreement? Is follow-up available, and is it billed separately?
- Can both parties have a voice in choosing you under the applicable agreement or program?
The Hawaii Judiciary guide recommends reviewing written materials and interviewing mediators about their training, experience, approach, and fees. The ABA practitioner guidance also recommends considering whether the other side is likely to listen to the proposed mediator.
Questions to ask an arbitrator
Choosing an arbitrator means choosing a private decision-maker. Ask how the candidate handles evidence, credibility, contract interpretation, damages, discovery, motions, deadlines, discovery disputes, and hearing time. Ask whether awards are reasoned or brief and what the parties can request. A reasoned award can help explain how the decision was reached, but it is not universally required.
Read the arbitration clause and applicable rules to confirm the number of arbitrators, appointment process, challenge procedure, governing rules, and whether the award will be binding. Provider organizations such as AAA, JAMS, and CPR may administer cases under their rules and offer panels; with an ad hoc selection, the parties must coordinate rules and logistics themselves. Compare the rules and fees that actually apply to your matter rather than assuming providers work alike.
Compare your finalists
Use the same questions for each candidate. This side-by-side comparison helps expose differences that a résumé may not show.
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1Scan for outdated or missing drivers - takes under a minute2Repair Windows errors before they cause bigger problems3Fix the driver behind crashes, sound loss and screen glitches| What to compare | Mediator | Arbitrator |
|---|---|---|
| Main job | Facilitate communication and help parties negotiate an agreement. | Decide the dispute and issue an award. |
| Expertise | Enough practical fluency to understand the parties’ interests and, where appropriate, help them test positions. | Knowledge to evaluate evidence and reach findings on the issues in dispute. |
| Style | Facilitative or evaluative approach; ability to listen and manage emotional or non-monetary issues. | Approach to decision-making, evidence, questioning, and award reasoning. |
| Process control | How the neutral structures negotiation, handles caucuses, and keeps both sides engaged. | How the neutral manages discovery, deadlines, motions, and the hearing. |
| Preparation | What submissions the neutral reads and whether follow-up is available. | How briefs and evidence are reviewed and hearing time is managed. |
| Cost and logistics | Session minimums, preparation fees, cancellation terms, and remote or in-person options. | Administrative fees, hearing days, panel size, preparation charges, and award format. |
| Consequence | The parties decide whether to settle; the mediator does not impose an agreement. | Binding or nonbinding effect depends on the governing terms; binding awards generally have limited review. |
Adapted from selection considerations in the ABA practitioner guidance, ABA dispute-resolution overview, Hawaii State Judiciary guide, and Illinois State Bar Association guide.
Independent reader supportYour contribution helps us test, update, and keep practical guides available for everyone.A practical shortlist and interview workflow
- Read the controlling document. Review the dispute-resolution clause, court referral, or program rules. Confirm who may select the neutral, any qualifications, applicable rules, and whether the process or award is binding.
- Set your criteria. Record the result you want, key legal or technical issues, relationship or safety concerns, timetable, and budget.
- Find candidates. Ask the other party, counsel, or an appropriate local court or bar program for names. If selection is joint, build a shortlist both parties can assess.
- Request comparable information. Ask finalists for biographies, training, experience with similar matters, process descriptions, references, conflict disclosures, fee schedules, and availability. Request sample written work where it is relevant to an arbitrator’s role.
- Interview consistently. Ask each finalist the same questions and how they would approach the type of dispute, without asking them to prejudge its merits.
- Choose and confirm terms. Compare the candidates against your priorities, record why the selection fits, and confirm current rules, payment and cancellation terms, and confidentiality provisions before appointment.
Credentials depend on the state, program, and role
Do not assume that a particular degree, former judicial position, or certificate makes someone the best neutral. The Hawaii State Judiciary guide says there is no universal answer to what makes a competent mediator and that no particular education or work history has been shown to predict success; context, neutrality, listening, communication, and the ability to clarify issues matter. Private mediation qualifications and roster rules can vary.
State examples should not be treated as nationwide rules. Arizona Bar consumer guidance describes no statewide certification prerequisite in Arizona while recommending that consumers check experience or consider trained professional organizations. The Illinois State Bar Association notes that arbitrators are often lawyers, but may also be people capable of understanding the terminology and trade practices involved; some programs or providers may set specific criteria or training requirements. Check current law, program requirements, provider rosters, and the governing contract for your location and case.
When to get legal advice
Consider consulting a lawyer if you are unsure how a dispute clause works, whether arbitration will be binding, what review rights remain, or how confidentiality applies. A neutral does not act as your lawyer or provide legal advice. Advice is especially important when the stakes are high or safety concerns affect whether and how to participate.
In her March–April 2026 ABA article, Selecting Arbitrators and Mediators: A Guide for Small Firm Litigators, litigator Sara Khan Sigman wrote: “The most important lesson I’ve learned is not to rely solely on résumés. Talk to colleagues. Ask pointed questions. Match the neutral not only to the case, but to the moment the case is in.” This is practitioner advice, not a legal rule or a measured study result.
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