The mediators are a central figure in the mediation process. Although the mediator is theoretically held out to be impartial, in practice, this is very difficult to sustain. The term impartial has been summed up as “the quality of being principled enough to remain equally committed to the legitimate interests of all parties”. The mediator listens to all the parties and consciously or subconsciously begins to assess, judge, and evaluate the information. This automatic thought process also shapes and affects the mediator’s reactions, suggestions, proposals, and strategies, which in turn influences the outcome of the mediation and potentially favors one party over another. Thus, it has been argued that mediators influence both process and outcome by affecting the legitimacy of each party’s point of view through their interventions, determination of the order of speaking, caucusing, and reframing of parties’ statements.
Mediators have tremendous influence over the process of mediation. Prof Gary Smith frames mediators as playing the role of the “writer, director, and one of the central characters in the play,” employing “various moves, or techniques to promote the success of the mediation”. To achieve their goals, mediators have to exercise a measure of control, authority, and influence through in enforcing the ground rules, directing the agenda, shaping preferences, and reality checking. They are knowingly or unwittingly exercise a significant amount of power and influence the decisions of the parties as well as the mediation outcome. This power comes to light in the various functions and roles that the mediator takes on throughout the mediation.
The exercise of mediation power in the areas of power as knowledge and expertise, power as design and control of the process, power as reframing, and power as pressuring to settle through various communication techniques, caucusing, reality checking, and threatening to withdraw, is a special case. The knowledge and skill of the mediator also engenders a certain amount of respect, as the parties may come to view the mediator as someone they can trust to help them solve their dispute. 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.
Mediation is “altering perceptions” by breaking down the impossible into smaller pieces, rendering them more attractive, and “gradually re-polarizing and merging the inner portions of the model with those surrounding them,” in order to bring about a resolution to the dispute. To achieve the success, it is unlikely that mediators can hold themselves completely separate from the dispute resolution process, in an attempt not to access and employ their power. 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 neutral and non-bias process, mediators struggle to keep their prejudices and their interest out of the process and are prohibited from judging the substance of the agreement; but in order to bring the hidden interests of the parties to the surface, mediators must attend to the content of the agreement, so that all interests are represented.
Some mediators focus on reaching a settlement, displaying a tendency to be more proactive and offer their own suggestions. Other mediators focus on enhancing communication and fostering constructive dialogue, placing more emphasis on encouraging the parties to bring forth their needs, concerns, and interests.
In fact, social anthropology research also found that “mediators regularly exercise influence, either passively or actively, and that such influence serves to assist in an outcome palatable to the mediators, corresponding to own ideas and interests”. The mediators bring to bear his or her experience, expertise, and knowledge of the process, working with the parties to reconcile their interests and arrive at a resolution that is agreeable to them.
Mediators need to develop a keen awareness of their power, share their experiences, and generate best practices as to how the exercise of mediator power should be tailored to serve the essential objectives of the mediation process as well as the interests of the parties. In fact, Mediators exercise a significant power in the mediation process, the limits of that power and how it ought to be controlled to prevent abuse and ensure legitimacy and fairness cannot be properly examined.
In course of carry out their role and various functions, the practice of mediation requires the mediators to employ particular techniques and strategies and in the process inevitably exercise a significant amount of authority and power. The degree of influence of mediators, the goals set out to be achieved through the mediation process, and ultimately the power they can exercise will vary with the orientation of the mediator as well as the model or approach that they employ.
Nonetheless, it is important to keep in mind throughout this discussion that the degree of influence, and ultimately the power that a mediator can exercise, is likely to vary with the type and orientation of the mediator, as well as the model or approach that he or she employs.
In practice, there is little objective evidence on which to assess the alleged partiality of mediators, or to demonstrate that the mediation process is immune from the inevitable failures of impartiality. In fact, even in the case of judges, impartiality is likely an aspiration and not the reality. In the context of judging, though, the formal and public setting, judicial forms of distancing, and the existence of rules of procedure to check overt signs of prejudice afford some protection against bias. In contrast, in the context of mediation, thanks to the intimate relationship of the mediator with the parties, the informality and flexibility of the process, and the lack of a formal public record, there is a great potential that bias will influence the outcome (Grillo, 2001).
One scholar observed that “As a field, both scholars and practitioners have linked the “magic” of mediation to the impartial and neutral third parties who act as mere process facilitators, avoiding the crossover into advocacy, substantive analysis or the creation or promotion of specific solutions.
There may be discussion whether some of the contradictions and tensions are emerging in the practice of mediation need to be more closely examined and addressed, particularly in the context of mandatory mediation, in the interest of protecting the fundamental rights of the parties and ensuring that a minimum level of integrity, fairness, and legitimacy is sustained in the process.
No method in this earth is perfect. Mediators can develop and improve our qualities and skills with practice. Mediators may look at the realities of the mediation practice and exchange ideas with parties in mediation to determine whether mediation needs to change, or stay the same; whether mediators should continue to exercise their power and be trusted to make the right ethical choices in different contexts.
The mediator brings to bear his or her experience, expertise, and knowledge of the process, working with the parties to reconcile their interests and arrive at a resolution that is agreeable to them. If the mediator truly succeeds in not exercising any power, then the process is not all that much different from straight negotiation, with an additional person present but not adding or contributing anything more in the outcome of the mediation. They need to become more conscious of the important role they play and the delicate balancing of interests involved in the mediation process.