The role of the mediator

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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.

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.

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.

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.

This Post Has 4 Comments

  1. Victor Berger

    I think that this article does address some aspect of skill which a mediator should bring to bear upon the issues in and parties to a mediation. It has been my practice to particularly have regard to the following practices, namely to declare that my duties include:

    – to be impartial and to demonstrate that even in choice of words. This of itself is difficult and requires great caution at the best of times however being the parties will increasingly gain confidence in the mediator when such effort is observed. With cultural differences and the exponential growth of political correctness and I would invite the parties to bring any failure to achieve same immediately but courteously. This equally important for the benefit of the opposing party/ies;
    – maintaining confidentiality of any information provided whether oral and/or documents except to the extent authorised to be disclosed and what, to whom and when such disclosure may be made;
    – reality test and be guided by the parties to what extent opposing party may participate in that process.

    In the event of any participation great caution needs to be exercised how that is managed bearing in mind any anxiety and/or prejudice to either party:

    – not to give any professional advice;
    – I am likely to have the parties assist me in the drafting of terms however it will be me who concludes the final draft.

    I regret that I have seriously disappointed with drafting of terms by many mediators. In my experience inadequate attention and skill seems to have been applied especially as to:

    – properly catering for the expectations of the parties; and
    – addressing the consequences of breach/non compliance with any of the terms. This calls for providing for essential and non-essential terms.

    Mediators need to consider what liability they may incur for negligence. That requires identifying law/s of which jurisdiction applies including considering who are the parties and the issues. I have had much experience in Australia. I confine myself to the above in part as caution against offense to any reader/s who are amply qualified in respect of same. I am glad to enlarge upon the above and other views and invite any questions or suggestion. Indeed exchange of views among all of us I am confident would be illuminating.

    1. M S Siddiqui

      Thanks for your thoughts and evaluation of my write-up.

  2. Alvin Leung

    Impartiality is a very important role for a mediator. He or she need to keep it strictly. Being a mediator, we should not involve personally in the case which is being mediated.

    A mediator with more experience in life is a advantage on the mediation job. But it is not representing that mediator should be an elder person. Mediator is using the negotiation technique to lead the disputed parties to reach an agreement and try to dig out the core value and bottom line of each party in order to have them to reach a point that both sides could accept and reach an agreement. No personal interest for mediator should be involved in the mediation process.

  3. Daniel Erdmann

    Dear Mohammad,

    thank you for your time and points of view. I am very grateful to see that you specifically focussed on the managing possibilities that a mediator holds in the hands while working with the participants on ‘furnishing’ – as you called it – an agreement. You may remember our discussions and the fact that I always ask the mediator to be flexible. This necessity and the benefits of such flexibility was perfectly outlined in your article. Too often than not, mediators still get lost in a strict model of mediation procedure that does not meet the complexity of real life mediations at any point. It is only by the exchange with peers, by the ability to personally reflect, and by the broader professional vision that a mediator can reach this more effective working level.

    Strict mediation models totally dismiss the complexity of conflict and furthermore, the personal and professional abilities of the mediator. I kindly ask all of you to take this difficult step, and to unchain yourself in order to become a free, flexible and effective mediator. Each of you gathers more competencies than any stage model can bear. Free yourself!

    Best regards, Daniel Erdmann

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