Mediator Challenges - 1

05 Feb 2018


Preparation Stage

  1. Conflicts of Interest. What are the real conflicts that should cause a mediator to withdraw from the appointment?

The discussion revolved about whether there was a conflict of interest where the mediator or his firm had

  • acted for one of the parties in the past,
  • was hopeful of acting for one of the parties in the future and
  • finally if they acted for one of the parties at this time.

A point of agreement was the mediator’s role is none judgemental therefore conflicts of interest should not be a major issue. The only time they felt a conflict could occur is if the mediator or their firm currently acted for one of the parties.

An anecdotal point was of a surveyor well regarded in his field, was accepted as a mediator in a dispute where he was acting for both parties but on other issues. Presumably they felt any conflict was evened out.

Opening Stage

  1. Participants. What do you do when one of the parties attends the mediation with an unannounced extra person?

The group was quite unanimous on this point. The mediator asks the other party if they object in the extra person can attend. If they do object, then the extra person is not included in any joint discussions but can attend the separate caucuses.

Negotiating Stage

  1. Assertive lawyer. How do you deal with a lawyer who tries to control the mediation process?

The group felt that it is important to set the ground rules for the mediation at the start, by ensuring the party not the lawyer is the one who the mediator deals with. In addition the lawyer is told at the start and if need be reminded throughout the process, their role is to help and guide their client and they should spend their energies this way rather that attempting to dictate how the mediator should handle the hearing.

Concluding Stage

  1. Authority. What does the mediator do if, after an agreement is made but before it is encased in writing, one of the parties admits they have exceeded their authority.

It is essential that the mediator ensures at the outset that those representing the parties have full authority to settle at whatever level is required. If however, one of the parties fails to disclose that they do have a limit of authority then this situation could occur. The meeting agreed the deal is not done until it is a signed written contract therefore the mediator either leads the parties back to the table and/or assists the errant party to gain the necessary authority to conclude the deal as the previously agreement.