The Roles and Functions of Mediators

Mediators can contribute to the settlement of disputes by creating favorable conditions for dealing with them. This can occur through;

  • Providing an appropriate physical environment this is through selection of neutral venues, appropriate seating arrangement, visual aids and security.
  • Providing a procedural framework-this is through conduct of the various stages of mediation process. As chair of the proceedings, they can establish basic ground rules; provide order, sequence and continuity. The mediators opening statement provides an opportunity to establish a structural framework, including the mediation guidelines on which the process will be based.
  • Improving the emotional environment-This is a more subtle function and varies among mediations and mediators. They can improve the essential environment through restricting pressure, aggression and intimidation in the conference room by providing a sense of neutrality and by reducing anxiety among parties.

ASSISTING THE PARTIES TO COMMUNICATE: People in conflict tend not to communicate effectively and poor communication can cause disputes to escalate. For mediators to encourage efficiently they themselves must be good communicators and practice good speaking and listening skills, pay attention to non-verbal messages and other signals emanating from the context of the mediation.

FACILITATING THE PARTIES NEGOTIATIONS: Mediators can contribute expertise and experience in all models and styles of negotiation so that the parties are able to negotiate more constructively, efficiently and productively. This function is prominent after the problem-defining stages of mediation and involves mediators bringing direction and finesse to the negotiation efforts of the parties. Mediators can also act as catalysts for creative problem solving, for example by brainstorming or referring to settlement options generated in analogues mediation experiences.

FUNCTIONS OF THE PARTIES

  • PREPARATION: Whether parties enter mediation on their own violation or because legislation obligates them to do so, they prepare for mediation in much the same way they would for negotiations, save that the mediator may supervise and facilitate their preparation. Mediators may require providing position statements, valuations reports and risk assessment analysis. The parties may also be required to consent to an agreement to mediate before preparatory activities commence.
  • DISCLOSURE OF INFORMATION: Agreements to mediate, mediation rules and court based referral orders may have requirements for the disclosure of information by the parties and mediators may have express or implied powers to direct them to produce documents, reports and other material. In court referred mediations, parties usually exchange with each other all material which would be available through discovery or disclosure rules were the matter to proceed to hearing. This would include witness statement, valuations and statement accounts.
  • PARTY PARTICIPATION: The objectives of mediation and its emphasis on consensual outcomes imply a direct input from the parties themselves. The mediation system will expect that parties attend and participate in the mediation meeting; and some mediation rules require a party, if a neutral person, to attend in person.However,the process assesses party participation in overall terms, so a party failing to participate in the initial stages may make up for this later in the process.