Mediator as Judge
By Nigel Chapman
Professional mediators often walk a fine line between being a facilitator and a legal professional. The whole point of mediation is to have opposing parties come to a mutually agreed upon solution. But sometimes they can’t do that without asking for advice or considering legal questions — and when they do, they turn to the mediator. So, what's a mediator to do? Do we feign ignorance, letting the mediation play out as it would, or do we offer our legal expertise? If we offer that expertise, is mediation no longer client driven?
Mediation is all about bringing people together, as equals, so they can solve their problems. It may be a work place disagreement, a domestic dispute, or a financial argument. Whatever the core issue, professional mediators are there to let parties work through the matter together, at the same table and on the same level. We have to let them move the discussion from a zero sum intransigence to one of communication and cooperation. But, again, sometimes the parties get stuck on a matter, encouraging the mediator to offer advice. They may ask, “How do other people solve these problems?” or, even more nettlesome, “What does the law say?”
Mediators are then in a tough spot. We cannot offer legal advice in mediation. We can, however, provide carefully worded information. For example, we can say how similar cases have ended, or discuss a range of possibilities. We can also say things such as “Have you thought about this possibility?” Either way, this approach can undercut the client driven nature of mediation, especially if the mediation participants push harder, asking for a “ruling.” This approach forces the mediator to make a decision: remain neutral or put on their “judge” hat and weigh in.
By acting as a judge, we run the risk of derailing the whole process. If a mediator says, “Drawing on legal background, I believe Party A is in the wrong,” then Party B may claim bias and call the whole thing off. But, then again, your professional and measured insight could break an impasse, creating a starting point for more productive mediation. It’s truly a subjective decision.
My view is that as long as the implications are clear and accepted freely by all parties, then an evaluative approach is preferable to future litigation. The other alternative is to postpone the final stages of a mediation to allow the parties to think and reflect. Either way you go, mediators must be sure they’re putting the participants’ needs first.