Mediator’s Role

The mediator’s role is to make the normal negotiating process more effective. The mediator will assist communication. He will help the parties focus on the key points of their own case, including its weaknesses. He will also help the party understand and appreciate the other party’s case. He will bring realism to the party’s expectations, as well as reminding them of what the cost will be for taking the matter forward in court/arbitration and the risk that they will not succeed. The parties will often disclose to the mediator their ‘bottom line’ in a way they would not be willing to do in ordinary negotiations. This is because the mediator cannot reveal anything to the other party unless he is authorised to do so. The mediator therefore holds confidential information from both parties, which he can use to help reach settlement. In my experience mediation makes slow progress at the start of the day and then gathers speed towards a settlement as time starts to run out. The parties become concerned at the lack of progress and fear that the effort they have made will not result in a settlement. Not every case is suitable for mediation. For example, there is little to negotiate if one party owes a debt to the other party and will not or cannot pay. In my experience, mediations are particularly effective when there is more than one defendant, who is potentially liable. In a mediation, they may all be willing to contribute something to settle a claim and to save their costs of defending the claim and the possibility that anyone of them will be found solely liable for the whole of the claimant’s claim (and all parties’ costs). Also, where the parties have claims against each other, mediation can be very effective. In the most common form of mediation, the mediator makes no comment on how strong a party’s case is. However, parties can ask him to do so, in either a binding or non-binding way. This is known as Early Neutral Evaluation. The intention is to tell the parties whether their claim is as strong as they think. This can save costs if they agree not to pursue a case they will lose. Mediation success – every mediation which I have done resulted in a settlement. On an average, about 70% settle the same day and a further 15% to 20% within a few days. It is very effective at ending disputes.