The role of a Mediator in settlement

In a facilitative mediation process the Mediator should not try to persuade the parties to settle on terms identified as appropriate by the Mediator. It is not the role of a Mediator.  The Mediator should avoid providing advice or suggesting outcomes.  The terms of the settlement should be arrived at by the parties on a voluntary basis for the purpose of seeking to address their underlying interests.  Whilst the Mediator is entitled to exercise control over the mediation process itself the Mediator must avoid any influence or control over the substantive issues.  In contrast a Mediator involved in an evaluative process may analyse the various issues in dispute between the parties and put forward a recommendation which is none binding.

The Mediator can however modify the role adopted slightly within strict limits.  A mediation process is divided into two types of session namely plenary and caucus.  The plenary session involves both parties being present in the same room with the Mediator.  During that part of the process the Mediator cannot put forward suggestions or proposals to both parties.  The Mediator should focus on control over the process as a facilitator and not provide guidance on issues of substance.

The caucus session is a private session whereby each of the parties is in a separate room.  A Mediator may in caucus session go further than in the plenary session by querying any assumptions made by a party concerning the strength of their case.  In the private session the Mediator may carry out a “reality check” in the caucus session.  The Mediator may explore issues relating to the costs involved in pursuing the proceedings and may ask the disputant to re-examine the amount of costs and compensation he is currently claiming in the litigation.    Whilst this would not constitute persuading the disputant to modify his view nevertheless the Mediator can invite the disputant to re-examine the case he has on the basis of open questions.    In an indirect way this particular part of the process may encourage some form of outcomes that may not otherwise be capable of being achieved.  The Mediator may use such techniques as indicating that “the timing may be right for an offer”.  The disputant may then authorise the Mediator to take an offer to the other disputant in the other room.  This process can therefore lead to some progress in the mediation process.  However, the Mediator must stop short of expressing a view on the merits of the dispute under the facilitative process. 

If the Mediator considers that an impasse has been reached and no further progress can be made then the parties can authorise the Mediator to move into a non-binding evaluative mediation where the parties can ask for a recommendation as to how the dispute might be resolved.