05 Feb 2018
The discussion revolved about whether there was a conflict of interest where the mediator or his firm had
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.
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.
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.
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.