Role for the Mediator

By Frank Laney

A quality mediator needs to have expertise in facilitating communication and decision making, being a process expert.

Substance vs. Process

There is a continuing debate about mediator qualifications, about what it takes to be a good mediator. The question is, “Does a good mediator simply need to be an expert on the Process of mediation, executing the procedure or task well, or does a mediator need to also understand or even be an expert on the Substance or subject matter of the dispute?”  The answer to this question depends on the role of the mediator; what is the mediator’s central task?  The role of the mediator is determined by the foundational elements of mediation – the Definition of Mediation and Mediator Ethics. Once we understand the role of the mediator, we can determine the qualifications needed to fulfill that role.

The Definition of Mediation

Mediation is a Neutral, Facilitated Negotiation with the goal of Resolution. The parties are negotiating a solution to their dispute and their goal is to reach a resolution. The role of the mediator is to facilitate the parties’ negotiation. To be successful in the facilitation, the mediator must be neutral. The mediator is to help or to assist the parties’ discussions but not to dictate or determine their resolution. The mediator does not determine what the problem is nor how it is to be solved. That is up to the parties.  In facilitating the process, the mediator plays an important role in deciding how the problem is discussed, guiding the communication and the overall structure of the conversation or negotiation. To be able to help the parties in this facilitation task, the mediator must gain their trust as a fair and honest aide. To be trusted the mediator must be neutral. When you were a child and had a dispute with another child in the neighborhood, would you choose the other child’s mother to mediate the dispute?  Or would you be concerned that she would take the other child’s side against you?  Would you trust her to be neutral?  Similarly, if a mediator is not perceived as neutral, she cannot be effective.

The core of the mediator’s task is facilitation: helping the parties successfully complete the task they have undertaken, not to sway them toward a resolution that the mediator thinks is “best.”

Mediator Ethics

A review of the many codes of ethics espoused by leading mediator groups in America shows five common elements:
Informed Consent
Informed Decisions

Informed Consent means that the parties should understand the process of mediation and voluntarily agree to participate after being informed about mediation. The mediator’s responsibility is to describe the process, clarify the roles and expectations of the participants, including those of the mediator, set any ground rules, and disclose the costs. Once this information is understood by the parties, the mediator should gain their consent before proceeding.

Confidentiality has many facets, and a complete discussion extends beyond the scope of this article, but in summary, a mediator should hold in confidence anything said or done in the mediation and should not reveal it to anyone outside the mediation. Also, what one party tells the mediator in a private caucus should not be revealed to another party without first gaining permission from the disclosing party. The purpose of confidentiality is to inspire the parties to trust that they can be open and honest with the mediator and thereby reveal their true needs, desires, and interests.

Impartiality means that a mediator is to be neutral. The mediator will guide the process but not play a role in making a decision. The mediator will leave to the parties what issues they will discuss and how they will resolve those issues. Additionally, if the mediator has a conflict of interest (such as a relationship with a party or a personal interest in the outcome of the dispute) or a possible perceived conflict, the mediator must disclose the conflict to the parties and recuse himself if the parties do not waive the conflict.

Informed Decisions means that the mediator is to attempt to ensure that the parties’ decisions are based upon complete information. The mediator will assist the parties in exchanging information and interests, as well as helping them get professional or legal review, information, or advice. The mediator will attempt to gain full disclosure from all parties to ensure that everyone has full information upon which to base his or her ultimate decisions.

Self-Determination is simply that the mediator allows each party to make his or her own decision. The mediator will assist in the process leading to the decision point, but she will leave that decision to the party.

These final three elements of the code of ethics underscore the idea that mediators are to be assistants, supporters, or coaches, not active participants in deciding how to resolve the parties’ dispute. As neutrals, we do not form opinions or take sides as to how the problem should be solved. We are to aid them in getting full information and exchanging ideas but then leave the decision to them. We are to allow each of the parties to determine for himself or herself if and under what conditions to resolve the conflict. Our job is to facilitate or coach, not to be an active participant.

Mediator as Facilitator, Not Decision Maker

In looking back at the mediator’s task – to facilitate the parties’ conversation and decision making process – we see that knowledge of and expertise in the process is what makes a good mediator. While a mediator is aided by understanding the background or vocabulary of the dispute, such as the facts, culture, or industry out of which the dispute arises, as well as how a court might view the matter, by reviewing documents in advance and asking penetrating questions in the mediation, a good mediator can gain sufficient familiarity with the problem to aid the parties’ discussion and decision making.

The most common reason for using a mediator with subject matter expertise is to shorten the discussion of the situation and save time. However, the process of explaining to a mediator the causes, issues and merits of one’s claims has several beneficial effects. It causes the disputant to organize his thoughts and articulate his case. At times it causes the disputant to think deeply about the situation and discover flaws in his own analysis or presentation, to discover it is not as persuasive as he thought and causing him to rethink his position on resolution. The explanation process also allows the other side to hear, without interrupting, maybe for the first time, the case from the speaker’s point of view. This can cause the other side to also think deeply, and analyze her case and position. Therefore, the process of describing and discussing the problem with the mediator has positive beneficial effects beyond simply informing or illuminating the mediator. Bringing in a mediator who already knows and understands all the background short-circuits this discussion and exploration process. It may save time, but at the risk of damaging the mediation and the possibility of resolution.

It is tempting and more comfortable to use as a mediator someone from a similar background as the disputants, someone familiar with their industry or profession. However, a good mediator who is mentally flexible enough to  learn quickly about the dispute and understand new concepts, is best situated to guide the parties in making their own resolution. Subject matter expertise is needed by a decision maker, such as an arbitrator or a neutral evaluator, not by a mediator.