5 Potential Benefits To A Mediator Being Involved In Decision-Making

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5 Potential Benefits To A Mediator Being Involved In Decision-Making

Published by laurence nicholson in Opinion · Monday 07 Aug 2023
(To listen to this as an audio podcast, click HERE)

Following on from my article on the reasons a mediator is not involved in the decision-making process, I am balancing this up with some areas in which there might be benefits for the parties if they were involved. At the end I will also go into how these areas may still help indirectly, when considering the facilitative type mediation practiced here in the UK, as well as the obvious problems with doing so.

So, having set the scene, let’s have a look at what I am talking about.

Benefit #1 - Broader experience of creative solutions from past mediations.

One of the biggest benefits to mediated settlements is the fact that the solutions can be very creative (but lawful!), and in fact this is the last chance on the path to litigation when the parties actually get to decide on the outcome themselves, and not hand over to an arbiter or judge for some type of financial or sanction based award.

An experienced mediator will have seen many creative solutions thought up over the course of their experience, so could have in mind something they have seen in the past that the parties are not considering, which could unlock their dispute.

Benefit #2 - Expert professional knowledge of the technical issues present in the dispute.

This is something I discussed in my podcast ‘Mediator Backgrounds’, where I looked at whether it was useful to have some expert knowledge in either the topic of the dispute or a legal background.

As I mentioned in that podcast, where the dispute is of a technical nature, if the mediator has a good depth of knowledge of the subject matter, it can save time by not having to explain the detail so much, and the parties can be guided to the potential settlement discussions more quickly. Remember though, that the mediator should only be controlling the process of the day, not the accuracy or validity of any arguments.

Benefit #3 - Insight into perceived legal outcomes from litigation.

This one is similar to the previous benefits, in that an understanding and reasonable opinion on how the courts typically rule on similar disputes, could be a catalyst for looking for a settlement through mediation, however this view would tend to be better received by one party over the other, as one could feel more emboldened to take it to litigation because they believe their case is stronger.

A mediator might use this information to try to ‘nudge’ parties in certain directions because of this experience, so as to increase the potential and likelihood of their reaching a settlement during the mediation. This still retains the benefit of the parties avoiding the time and financial cost and reputational and relationship damage which comes from litigation, but as we will see later, has serious drawbacks.

Benefit #4 - Has a better understanding of what each party is looking for and will accept.

One of the consequences of the process being entirely confidential for each party, is that as they can be entirely honest and open with the mediator, they can find themselves exposing details to the mediator they might not want to share, especially relating to boundaries and minimum acceptable offers.

This information is of great value to the mediator as it allows them to carefully challenge any suggestions of offers a party wants to make in a constructive way, and subtly try to steer them away from something that could be poorly received, and consequently damage any progress made up to that point, and any trust in the process.

It is worth noting that this is already an effective part of facilitative mediation in how it is practiced today in the UK, and one of the indirect benefits of where skilled mediators support the process, without direct involvement in the decision making. This is however, as we will see later, an area which it open to much debate regarding interference.

Benefit #5 - Comforting for a party who trusts their judgement.

When we consider that in any dispute, we tend to look for an ‘expert’ to tell us we are ‘in the right’ and have a strong case, such as legal counsel, to make us feel better about the uncomfortable and costly litigation path, feeling the mediator has such knowledge and that they are ‘helping’ in the journey toward a settlement, can add to the comfort of feeling they are making a good decision.

This can be the case even if the mediator is suggesting a lesser settlement than the party would like or can afford to accept. This can lead to unfortunate consequences, as we will see next.

So what are the problems with a mediator being able to provide these ‘benefits’? Surely this is good, is it not?

Let’s consider the overarching purpose of mediation, and the fact that the outcomes are generally an acceptable compromise. When parties are in dispute, emotions are typically running high and hard positions are constructed and defended at all costs, in a need to feel vindicated in their view, often looking for a Judge to agree with them and punish the other party. Mediation is designed to facilitate a dialogue between the parties to look for a reasonable compromise where neither party feels they have lost face, but have successfully avoided the lost time, income and high expense of litigation, where any outcome is unpredictable at the best of times.

The key part of that statement is the notion that the mediator facilitates dialogue between the parties. This is done by providing the environment in which to do so safely, without consequence in any later litigation, and without interfering in the discovery of a solution by remaining completely impartial.
Now consider if a mediator starts suggesting solutions. These are not ones which originated between the parties, and whether or not the suggestions are good ones, the parties are no longer in full control of the decision making. Interference has happened.

The same principle exists if a mediator offers advice or insight, either from a subject matter expert angle, or legal experience into how they consider the case will be received in court. For the former, the mediator’s advice is subjective, and for the latter it is the place of the parties’ legal counsel to do this, and any other input will be considered as interfering with the process, and this can be seen as breaking impartiality, especially by the party who feels it compromises their outcome, which can later manifest in a claim against the mediator for partiality, undue influence and interference.

When we look at the benefit of personal or strategic knowledge gained confidentially by the mediator during the individual sessions, like I said earlier, it can seem only positive, however there is much debate around whether any attempt by the mediator to influence potential offers because they are clearly not likely to be accepted, or worse insults the other party, constitutes interference and breaking confidentiality by applying knowledge gained from the other party, without their consent. I feel this is a stretch and would be unlikely to be accepted if any claim were later made, but it depends on the extent of any use of the knowledge and how overt this behaviour was.

The role of the mediator is to provide the environment and encouragement to parties in a quest to allow them to reach a settlement agreement THEY have made together, so any advice, suggestion, opinion or communication of information relating to the other parties, is likely to be seen as a breach of impartiality and confidentiality, and jeopardises any agreement on the grounds of mediator influence.

In summary, the potential benefits of a mediator being involved and inputting to the decision making, would compromise the facilitative process and could result in a reason for one of the parties to renege on the agreement on the basis of it not being their agreement.

As always, leave me comments, good bad or indifferent, by email or against the article (on the ‘blog’ page if you are listening to the podcast), and watch out for the next topic in a few weeks.


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