Meditators: Demolishing Opinions, Building Awareness

A mediator is a neutral third party who facilitates the resolution of a dispute between two or more parties. The role of the mediator is to guide the process in a constructive direction and help disputing parties find a solution that works for them. Mediators do not decide the outcome of the dispute or provide prescriptive advice. Instead, they encourage active participation from all parties, promoting open communication and the exploration of interests, needs, and rights.

The mediation process is voluntary and non-binding, allowing parties to retain control over the resolution. It is also confidential, fostering an environment of trust and encouraging frankness. The mediator ensures that all parties understand the terms of any settlement and are able to give informed consent.

Mediators must be competent to mediate the particular matter, remaining impartial and avoiding conflicts of interest. They should also be aware of applicable laws, rules, and ethical guidelines to ensure the process is fair and respectful of the rights of all participants.

By following these principles, mediators can effectively carry out the general demolition of opinions, meaning they help disputing parties set aside their differences and work together to find a mutually beneficial resolution.

The mediator should ensure that all parties are informed about the mediator's role and nature of the mediation process

A mediator should ensure that all parties are informed about the mediator's role and the nature of the mediation process. This means that all parties understand and agree to mediation as a process, the mediator's role in that process, and the relationship between the mediator and the parties. The parties should also be aware of the procedures the mediator intends to employ, including whether the mediator will help the parties evaluate the likely outcome of the dispute in court or arbitration if they cannot reach a settlement through mediation.

The mediator should also be satisfied that the parties have considered and understood the terms of any settlement and, if appropriate, advise the parties to seek legal or other specialised advice. If a party is unable to give informed consent to participation in the process or to the terms of settlement due to a physical or mental impairment, the process should not continue until the mediator is satisfied that informed consent has been obtained from the party or their authorised representative.

Additionally, if it becomes appropriate to discuss combining mediation with binding arbitration, the mediator should explain how their role and relationship with the parties may change, as well as the impact on the disclosure of information. The parties should also be given the opportunity to select another neutral party to conduct the arbitration procedure.

Mediation is a voluntary and non-binding process that assists disputing parties in resolving conflict through the use of specialised communication and negotiation techniques. It is a party-centred process that focuses on the needs, rights, and interests of the parties. The mediator facilitates open communication and analyses issues and relevant norms while refraining from providing prescriptive advice.

The mediator should protect the voluntary participation of each party

In most cases, parties to the mediation process arrive willing and able to engage in assisted negotiation. However, on rare occasions, a mediator may perceive that a party is being forced into and/or through the process, for example, by a family member or representative. In such cases, a mediator should carefully explore with that party and the other parties, within the bounds of discretion and confidentiality, whether the mediation process should proceed. They should strive to ensure that the concerns of the reluctant party regarding the process are fully addressed.

Court-ordered mediation often carries an aspect of involuntariness into the process. A mediator should be sensitive to this dynamic and assure the parties that although they have been ordered to attend the mediation, a settlement can only be reached if it is to their mutual satisfaction.

The mediator should also ensure that all parties are informed about the mediator's role and nature of the mediation process, and that all parties understand the terms of settlement. This includes making sure that the parties understand and agree to mediation as a process, the mediator's role in that process, and all parties' relationships to the mediator. The mediator should also be satisfied that the parties have considered and understood the terms of any settlement and, if appropriate, advise the parties to seek legal or other specialized advice.

If a mediator perceives that a party is unable to give informed consent to participation in the process or to the terms of settlement due to, for example, the impact of a physical or mental impairment, the process should not continue until the mediator is satisfied that such informed consent has been obtained from the party or the party's duly authorized representative.

In summary, mediators play a crucial role in protecting the voluntary participation of each party in the mediation process. They should ensure that all parties understand their rights and responsibilities, address any concerns or reluctance, and provide necessary support or advice when needed. By doing so, mediators can help ensure that the mediation process is fair, voluntary, and effective for all involved.

The mediator should be competent to mediate the particular matter

A mediator should be competent to mediate the particular matter. This means that the mediator should have sufficient knowledge of the relevant procedural and substantive issues to be effective. They should prepare for the mediation session by reviewing any statements or documents submitted by the parties. If the mediator feels they are unable to meet the reasonable expectations of the parties, they should refuse to serve or withdraw from the mediation.

The mediator's role is to assist the parties in reaching their own decision on a settlement of the dispute. There are two main types of mediation practiced throughout the world: facilitative mediation and evaluative mediation. Under the first model, the mediator facilitates communication between the parties and helps each side to understand the other's perspective, position, and interests in relation to the dispute. Under the second model, the mediator provides a non-binding assessment or evaluation of the dispute, which the parties are then free to accept or reject.

The mediator does not have an advisory role and does not offer prescriptive advice. They should remain impartial throughout the process and avoid any potential for bias. The mediator should also maintain the confidentiality of the process and not disclose any confidential information without the permission of all parties, unless required by law.

The mediator should also be aware of any ethical issues that may arise during the mediation process and address them directly. They should ensure that all parties understand the mediator's role and the nature of the mediation process, and that they have given informed consent to participate. The mediator should also protect the voluntary participation of each party and strive to maximize its voluntariness.

The mediator should maintain the confidentiality of the process

Confidentiality is a key principle of mediation. It is a private process, and the mediator should ensure that all parties understand this before the mediation begins.

The mediator should explain to all parties:

• Any applicable laws, rules, or agreements that prohibit the disclosure of information shared during the mediation in any subsequent legal proceedings.
• The mediator's role in maintaining confidentiality within the mediation and with third parties.

The mediator should not disclose confidential information without the permission of all parties, unless required by law, a court rule, or other legal authority. They must not use confidential information to gain an advantage for themselves or others, or to adversely affect the interests of others.

If the mediation is conducted under rules or laws that require the disclosure of certain information, the mediator should notify the parties before the session begins.

The mediator's notes, the parties' submissions, and other documents containing confidential or sensitive information should be stored securely and may be destroyed after the mediation ends, or sooner if all parties request or consent.

In most cases, mediation participants cannot be compelled to testify in court about the content or progress of the mediation.

There are some exceptions to mediation confidentiality. For example, in cases involving child abuse or criminal acts, mediators may be required to disclose information to authorities.

In addition, mediation participants should be aware that they may waive confidentiality by disclosing privileged information to third parties. If a party discloses mediation communications, they waive the privilege to the extent necessary for the other party to respond.

To ensure confidentiality, mediators and participants should have a signed mediation agreement that clearly states that all mediation communications are confidential. This agreement should be signed by all parties, third parties, and the mediator.

The mediator should conduct the process impartially

To maintain impartiality, the mediator should:

• Endeavour to provide a procedurally fair process, ensuring each party is given an adequate opportunity to participate.
• Disclose any information that could lead a party to question their impartiality.
• Withdraw from the process if they become incapable of maintaining impartiality or if a conflict of interest exists that casts serious doubt on the integrity of the process.
• Refrain from any post-mediation conduct that could reasonably cast doubt on the integrity of the process, unless there is disclosure to and consent by all parties.

The mediator's role is to act as a neutral intermediary, facilitating communication and promoting understanding between the parties. They should not offer legal advice or evaluate the dispute unless specifically requested to do so by the parties, in which case the mediator must ensure that the parties understand that they are not acting as an attorney. The mediator should also be mindful of their role when there is an unrepresented party, carefully explaining the limitations of their role and obtaining a written waiver of representation.

The mediator should not impose a decision on the parties but rather guide them towards a mutually beneficial resolution. They should assist the parties in identifying and exploring issues, interests, and possible bases for agreement. The mediator may also help parties evaluate the likely outcome in court or arbitration if a settlement cannot be reached through mediation.

Overall, the mediator's primary role is to manage the process firmly but sensitively, facilitating communication and aiding the parties in reaching a resolution that meets their needs.

Frequently asked questions