The role of the mediator in resolving your dispute
Mediation is a structured process to help you and the other party to solve your dispute. The mediator is an independent person – a neutral facilitator who has no vested interest in your dispute. This is critical as it ensures that there is no bias in the mediation.
This is one reason your own lawyer or the other party’s lawyer cannot act as a mediator. Even if your lawyer has the right intentions to try and be neutral, there is a risk that the other party does not believe this. Suspicisions about the mediator’s neutrality will damage the mediation process.
Not a judge or arbitrator
Unlike a judge or arbitrator, a mediator cannot make any decisions about your dispute. A mediator’s job is to help you and the other party reach your own agreement. The final outcome in the dispute is yours and both parties have to agree. If you do not agree, then your dispute remains unresolved.
Legal advice
A mediator cannot give you legal advice, even if the mediator is lawyer. Firstly, lawyers are supposed to act in their client’s interests. In a dispute with two parties on opposing sides, who is the client? Secondly, giving one party advice can make it seem like the mediator is siding with you or other party.
Identifying issues and options
The mediator will help you identify the issues that need to be addressed. Sometimes issues identified may not be directly related to the dispute being mediated.
James had a fencing dispute with his neighbour Tom. Through the mediation process, it turned out that James had been annoyed with Tom for some time as his dog barked uncontrollably. Working at home, this meant that James was constantly disturbed and could not concentrate.
In mediation, James had the opportunity to explain the impact of this and Tom offered to use a barking collar on his dog. Once this was dealt with, James became more open to Tom’s suggestions on the fence.
The mediator controls the process so that both parties can be heard and have the opportunity to have their say. The mediator also controls the conduct of the mediation so that parties are not aggressive or abusive to each other. Breakout rooms or private sessions are used if parties need to be separated and need time to calm heated emotions.
The mediator will ask a lot of questions to encourage open discussion with the aim of helping you and the party come up with possible solutions. Once there are some options, the mediator will also test the consequences of these solutions. Sometimes, certain options are unrealistic or unachievable.
Mediation allows you and the other party to be creative so that you can reach common ground and resolve your dispute.
In court, one person wins, the other loses. Your mediator tries to help both of you reach a win-win.
