Last edited 11 Jun 2019

The role of the mediator

Mediation is a consensual process of dispute resolution in which a third party mediator, appointed by the parties to the dispute, assists in the negotiated resolution of the dispute.

The role of the mediator is to give the parties the best chance possible of securing a resolution. To enable this they must facilitate negotiations, challenge assumptions and instill in both sides a sense of ‘reality’.

One of the key advantages of mediation is the inherent neutrality of the mediator, without pressuring the parties into settling or offering too readily their own viewpoint on the issues in a conciliation-style manner. The mediator does not enforce a settlement on the parties as in arbitration, nor do they simply participate in the negotiations. They are there to assist the parties to arrive at a mutually acceptable solution; they operate as a peacemaker.

The mediator is able to stand in a unique position since the parties will often confide in them during private ‘caucuses’ and as a result they will likely be able to see the potential for solutions from their ‘higher’ vantage point which the parties themselves may not appreciate. In contrast to the courts, where the primary concern is legal rights and entitlements, the mediator will try to focus the parties on looking to the future and their commercial interests, which often require a swift and harmonious settlement.

The mediator must keep in mind the fact the parties are both present for the same reason – they want a resolution to their dispute. They must ensure that an environment is fostered where people can speak without fear of reprisal or discrimination and that everyone is jointly focused on the task at hand.

There is often some confusion as to whether a mediator should follow facilitative or evaluative techniques, or whether there should be a complete and fluid mix of both. Providing the right environment, encouraging discussion, bringing the right people together at the right time, is the facilitation. Assessing strengths and weaknesses is the evaluation, from which the mediator should not be a dispassionate bystander. Mediators should be free and able to tailor the proceedings to best suit the parties. Whether more pre-meeting sessions need to be arranged or more experts brought in for example.

Clients demand engagement and commitment from mediators. The mediator is expected to be intuitive and emotionally intelligent, flexible in style and approach, dynamic but respectful, able to juggle lots of data, emotions and needs. A good mediator need not necessarily have expert knowledge, but it is essential that they have mediator training.

It is inevitable that the negotiating parties will never be 100% transparent with each other due to the belief that they may jeopardise their position. The presence therefore, of a totally independent third party, encourages them to divulge more sensitive information confidentially which will be used to form the mediator’s ‘bigger picture’ and to facilitate a better deal for both sides.