The parties at a mediation are about to agree on terms that seem to you to be very unfair to one party and far outside what you think a Judge might do at Court. The mediation has been conducted fairly and amicably and both parties are represented by seemingly competent lawyers. What should you do?

The role of the Mediator is clearly set out in the terms of the Mediation Agreement. In a facilitative mediation process, the Mediator is not responsible for providing advice to either side and is not in a position to exercise any judicial function. It is not the role of the Mediator to express a view on any aspect of the substantive issues before the parties. In a case where both parties are apparently represented by seemingly competent lawyers, it is quite clear that each party should rely upon the advice provided by their respective legal representatives. If, for some reason, that advice is later found to be incorrect in some respects then the matter would need to be resolved between each party and their respective legal representatives. The Mediator could not become involved in any such dispute. It is important to appreciate that the Mediator does not exercise any power or role outside the terms of the Mediation Agreement and, under the terms of any standard Mediation Agreement, the Mediator is not in a position to provide any advice nor to form any judgement on any issues and most certainly not in a position to influence the specific terms agreed between the parties. The Mediator’s role is restricted to dealing with procedural issues during the course of the mediation process itself.

The general principle is that a Mediator should be concerned with the fairness of the process rather than with the outcome. The Law Society’s code relating to Mediators is underpinned by the concept that Solicitor Mediators must not give advice to parties in mediation either individually or collectively.

The Mediator does not have a role to play in the situation described in the question. However, if it became clear to the Mediator during the process that one party was being misled by the other party then clearly an ethical issue could arise which would need to be addressed. If the Mediator felt that one party was being induced into an unconscionable bargain on the basis of deliberate mis-statements or other forms of fraudulent behaviour then the Mediator should immediately terminate the mediation process without further comment. In other words, the most direct way of seeking to address the problem would be to terminate the mediation process on ethical grounds but without revealing the specific grounds to the parties involved. However, this will involve careful consideration of the ethical issues and the terms of the Mediation Agreement and the code of conduct for the Mediator.