The role of the mediator

How to cite this journal: Author, Date of the post, WMO Conflict Insight, Title of the post, ISSN: 2628 6998, https://worldmediation.org/journal/

ABSTRACT *

This article examines the tension between the mediator’s obligation of impartiality and the active, influential role the mediator must play for mediation to succeed. Beginning from the voluntary and non binding character of mediation and the mediator’s functions of framing cooperative decision making, promoting communication, offering evaluation, empowering the parties and safeguarding fairness, the author reviews the codified understanding of impartiality, including the definition in the Canadian Bar Association’s Model Code of Conduct, and the duty to disclose and withdraw where impartiality can no longer be maintained. The paper then analyses the concrete instruments through which mediators exercise influence: agenda setting and process control, reframing of the parties’ accounts, caucusing and the shuttling of information between separate sessions, evaluation of likely court outcomes on request, and direct or indirect pressure toward settlement, including the threat of withdrawal. Distinguishing facilitative, evaluative and rights based approaches, the author notes that mediators may shift orientation mid process. The article concludes that model codes are framed too generally to guide concrete choices, that mediators must therefore exercise ethical judgment constantly and often unconsciously, and that their conduct is ultimately governed by four cardinal principles: do no harm, do good, respect self determination, and ensure fairness and justice.

KEYWORDS *

Mediation, impartiality, neutrality, mediator power, reframing, caucus, agenda control, self determination, ethical principles, codes of conduct, facilitative mediation, evaluative mediation, rights based mediation

INTRODUCTION

Mediation is one of Alternative Dispute Resolution (ADR). It is voluntary and non-binding on the parties in dispute. The mediator targets to take an active role in order to facilitate a settlement that includes all participants’ necessities. From what I learned, there are three elements that play a significant role in peoples’ acceptance towards mediation, namely: dignity and trust.

The mediator carries out a number of different functions during the process, for example: establishing a framework for cooperative decision making, promoting constructive communication, providing appropriate evaluations, empowering the parties, and ensuring a minimum level of process and outcome fairness (Boulle and Kelly, 1998).

Based on the above-mentioned characteristics, you may see that mediation is supposed to be of a specific creative and flexible nature, allowing confidentiality, direct participation, and control by the parties, thereby enhancing the parties’ self-determination. Throughout this process, the mediator takes on the role of a neutral third party, facilitating communication and assisting the parties to work out a mutually acceptable resolution.

MAIN CORPUS

One of the fundamental assumptions on which the practice of mediation is building the impartiality of the third-party intervener. The mediator is not supposed to favor, support, or demonstrate a preference for the position of one party over another. Impartiality and neutrality are considered the “critical defining characteristics” of an independent mediator (Macfarlane, 2003). The Canadian Bar Association’s Model Code of Conduct for Mediators defines impartial as “being and being seen as unbiased toward parties to a dispute, toward their interests and toward the options they present for settlement”. The mediator is expected to take on an impartial role and facilitate dispute resolution between the parties, in order to help them reach “a voluntary, mutually acceptable resolution of some or all of the issues of their dispute”.

Due to this description, the mediator has a very sensitive and difficult job. S/he should respect and encourage self-determination of the parties and preserve their objectivity and impartiality, while at the same time carry out their own role effectively. The key is for the mediator to move the parties through the mediation process in a way that is responsive to the parties’ needs and interests, as opposed to the self-interest of the mediator. If the mediator becomes aware that s/he cannot maintain impartiality then s/he must immediately disclose this to the parties and withdraw from the mediation.

The pragmatics of communication is used as a major tool to change polarity, and therefore participant perceptions”. The contextual reality accompanying a phrase or a sentence plays a key role by coming to a mutually acceptable conclusion. Where the mediator deems it necessary, she may use the “most direct and coercive means of influencing parties,” that is, threatening to withdraw from negotiations or actually doing so, in order to pressure parties toward settlement (Macfarlane, 1997).

Due to the mediator’s reflections during the session, s/he tries to set an agenda and follow a road map on how to proceed. The process decisions do have an impact on how the content of mediation emerges and is discussed. The mediator may encourage the discussion of certain topics in order to build a common ground or to keep certain topics off the table if she anticipates a clash of views and positions. This management of the agenda and control of the process is an additional element of the mediator’s power.

In mediation, parties begin by providing their own account or frame of the dispute. The mediator then uses the technique of reframing to “alter the language used to describe the dispute” (Smith, 1998) as well as the “perceptions, and current frames of the behavior, attitudes or issues in the dispute” (Candlin and Maley, 1994).

Mediators use a variety of techniques to impose direct and indirect pressure on the parties to settle. To bring the parties to settle the dispute, the mediator has to get them to accept that a settlement is a better option than litigation, in which the parties incur significant costs in time and expenses. To achieve this goal, the mediator has the power to direct the parties by “focusing discussion, procedurally and substantively, toward a settlement” (Silbey and Sally, 2001).

There are three categories of mediation approaches on the basis of role-playing by the mediator. (1) facilitative or ‘interest-based’ mediation, where the mediator does not direct the parties towards any particular settlement; (2) evaluative mediation, here the mediator makes suggestions as to the likely outcome of the dispute; and (3) rights-based mediation, here the mediator ensures that any mediated agreement reflects statutory rights and legal entitlements.

The mediator may determine the method of what might better match with the framework set up by the participants. Again, the mediator may start with leading the process in one direction and recognizing that another approach is more suitable, making the necessary shift in orientation through reframing the approach. Through reframing, the mediator tries to furnish an “alternative social account of the conflict,” helping parties to reinterpret their circumstances, their counterpart’s motivations, and the range of possible solutions (Gary, 2006). S/he may highlight the common elements of the discourse between the parties, attempting to create “a single perception of the dispute from a shared point of view” (Smith, 1998) in order to create an opportunity for constructive discussion. The mediator changes the storyline and shifts the entire conflict paradigm through reframing, altering how the parties view themselves and making sense of the conflict.

Mediators also make use of caucusing to engage in direct and more open communication with the parties. Here, each party can reveal information to the mediator, which has to be kept confidential and not revealed to the other party. She shuttles between caucuses, taking the knowledge gained from each party and reformulating it into his own suggestions, in order to blur the origin of the discourse. As such, caucusing gives the mediator significant power to alter the parties’ perceptions and transmit his

Basically, mediators don’t provide legal advice, but when asked by the parties, s/he can give an evaluation on how the matter is likely to turn at the court, emphasizing the relative strengths and weaknesses of both sides’ cases.

There is a significant tension between maintaining impartiality and taking an active role as a mediator. Mediator involved in a host of activities requiring evaluation of facts and circumstances, the judgment of legal and practice in the society, and decision making. S/he uses to exercise power and its various dimensions on the basis of knowledge and expertise to design and control the process, reframing, and imposing pressure to settle. But a mediator in a quite influential position and his/her exercise of power can have a significant impact on shaping the parties’ conduct, the process of mediation, and the final outcome reached by the disputants.

The professional codex of the mediator should lead him/her to be ethical in thought and making choices, based on a principle or value considered to be morally superior to the other (Macfarlane, 2002). It requires balancing alternative courses of action in the mediation process and deciding how far each advances the goals and underlying values of mediation. Mediator has the discretion to make this determination and to decide what is fair and reasonable. There are model codes of conduct that are supposed to guide the mediators’ choices, but these models are often framed in general terms and do not offer specific examples or concretely demonstrate where the line should be drawn and how the mediator should apply the general rules and principles provided therein in a specific context.

It may be argued that mediation is supposed to be flexible and creative; hence mediators should be given wide discretion to achieve the goals of mediation. However, the dilemma is that by leaving it up to the mediators to exercise their discretion, they have to exercise their ethical judgment “constantly, intuitively, and often unconsciously” (Macfarlane, 2002). They have to decide what is fair and reasonable, when they should intervene, how far they should intervene, how they should exercise the various dimensions of their power (or refrain from exercising it), and so on.

SUMMARY

A mediator usually is an elder person who gathered more experiences in life, who is able to speak wise and make suggestions with a certain amount of authority. The more informed the mediator is about the particular dispute and the legal process, the greater power she has to attain credibility and get the parties to accept her evaluation of the case. The key is for the mediator to move the parties through the mediation process in a way that is responsive to their needs and interests, as opposed to the self-interest of the mediator.

CONCLUSION

Finally, the mediator has four cardinal ethical principles of most professions: “do no harm, do good, let the client be self-determining and ensure fairness and justice”. The mediator should not press any kind of undue unethical influence violating the four ethical principles is an amount to coercion, violating the four cardinal ethical principles.

Any assertiveness produces agreement but less satisfaction, but it turned out that many mediators were assertive and got agreements without upsetting or irking the disputants. She may be a successful Mediator.

POTENTIAL SOLUTION *

The dilemma the author names is real: model codes state principles, but the decisive judgments arise second by second in the room, where no code reaches. Closing that gap does not require abolishing discretion; it requires giving discretion structure, so that intuitive choices become examined ones.

First, translate the four cardinal principles into decision rules for the recurring moments. General norms guide nothing until they are attached to concrete situations. A practice standard can specify, for example, that reframing must preserve the substance and gravity of what a party said and be checked back with that party before it is carried forward; that information from caucus is transmitted only with the express consent of its source, since blurring the origin of an idea is legitimate only when the source has agreed; that evaluation is offered only on request, given to both sides in comparable terms and framed as a range; and that the threat of withdrawal is used only where continuation would be improper, never as leverage toward settlement. Each rule turns an abstract duty into an observable behaviour.

Second, disclose the method and let the parties choose it. Since the mediator may shift between facilitative, evaluative and rights based orientations, the parties should know which mode is being used and consent to any change. A mediator who announces a shift, from exploring interests to testing legal realities, restores to the parties the control that silent reorientation quietly removes.

Third, distinguish assertiveness from pressure by its direction. The article’s closing observation is important: assertive mediators can secure agreements without alienating anyone. The line lies in what the energy serves. Assertiveness applied to the process, keeping momentum, insisting on respectful exchange, refusing to let a party be shouted down, strengthens self determination. Assertiveness applied to the outcome, pushing a particular deal, invoking costs to induce capitulation, replaces it. A simple internal test serves well: would I still make this intervention if the party then decided the opposite of what I expect?

Fourth, build the reflective infrastructure the codes cannot supply. Case supervision, peer review, co mediation in high stakes matters and post session self questioning about whose account dominated and where pressure was applied, convert Macfarlane’s unconscious ethical judgment into deliberate practice. Professional bodies can support this by publishing anonymised case studies that show precisely where experienced practitioners drew the line and why, so the next generation inherits worked examples rather than only maxims.

Handled this way, the tension between impartiality and active engagement stops being a contradiction and becomes a discipline: the mediator is fully present, fully skilled, and fully accountable to the parties whose conflict, and whose decision, it remains.

* Added by the WMO Editorial Team

REFERENCES *

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