The mediator is a neutral, impartial person who helps disputing parties to come up with possible solutions to their dispute and encourages them to reach an agreement. Mediation is typically less expensive and more informal than court proceedings. In many countries there are private commercial mediation services, and some government departments also arrange public referrals to mediation.
A mediator may be a solicitor or other lawyer, or someone with other professional qualifications and experience. Some are members of national or international mediation organisations. There are a variety of training courses for mediators, and the mediation rules set out ethical requirements. The mediator must not show bias or prejudice in the process and must not disclose information to either party that is not in the interests of a fair and just outcome. The mediator must also protect the confidentiality of the mediation and not be party to or influence any settlement.
It is essential that the parties to a dispute agree to mediate. If they do not, there is no point in attending a mediation session, as it will be a waste of their time and money. Mediation can only work if it is voluntary and the mediator is able to support the disputants in their efforts to reach an agreement for a settlement.
During the course of a mediation, the mediator will typically meet with the disputants in private to discern the underlying facts and issues in their dispute. These private meetings are called caucuses and the information revealed in a caucus is confidential. The mediator will often raise doubts about the validity of a disputant’s position, but this should be done in a non-judgmental way and with respect to the parties.
As part of the mediation, each disputant, usually through their lawyer, will give an opening statement. These statements should set out the background to the dispute, and a brief description of what each party hopes to achieve in the mediation. The mediator will then summarise the current state of play, and set out the options for resolution.
The mediator will then conduct the first meeting with the disputants. This will include an assessment of any documentation that each party needs to provide and a schedule for when this will be provided. The mediator will also discuss any specific arrangements for expert witnesses and other assistance, if required. The mediator will also explain any procedural aspects of the mediation and the rules relating to confidentiality. independent mediators