Mediation #2: Who is the Mediator?
The mediator is usually a qualified professional or other experienced person. In addition to a professional qualification or other relevant experience, he or she must have been formally trained as a mediator. Many people are ‘natural peace-makers’, but the skill of the mediator is not just a talent – like so many other vital skills in society, it must be learned. A basic training course at least, plus some experience, is essential.
Should the mediator be an expert in the field in which the dispute exists – for example, in law, or social work, or politics? Many mediators will argue that they can turn their attention to any kind of problem, because their skills focus on communication between people. Others say there is no doubt that the best mediators are familiar with the territory in which the dispute has arisen. That is, legal issues, or insurance issues, or local government, to name a few. Specialised knowledge may be necessary to enable a mediator to stimulate discussion between the opposing parties and very importantly, to know whether the solution that his clients are considering, is legal, or even possible. For example, it is senseless for the owners of adjoining properties to agree to an arrangement to swap driveways, if this is not possible because of town planning or land registration laws.
Second to the requirement for training and experience – and possibly even more important – the mediator must be ‘neutral’. He must have no bias, nor any interest in the outcome of the mediation. This requirement tends to disqualify religious leaders and family members, no matter how honourable – in both cases, they have expectations regarding the outcome of the mediation and are bound to try to influence the parties to adopt a particular approach, or to avoid certain decisions. No influence regarding the outcome must be exercised by a mediator – the outcome must result from the exchange between the parties. The mediator’s function is to guide the process, not the outcome.
In some big disputes such as those involving countries, communities or large commercial transactions, there might be a whole team of mediators. Such a team probably includes people with a range of disciplines and knowledge. In disputes between countries, for example, it pays to have people on the team to understand the various cultures, their languages, beliefs and special needs. Unless appointed simply to give expert opinion on one or more issues, each of the team must be familiar with the mediation process, so that they work together as a team.
In general, it appears (and is certainly my view) that the best mediators, are lawyers who have training, and interest, in mediation.
2 March 2018
Family Law Specialist lawyers and mediators; Divorce; Parents & Children; Grandparents; Cohabitation; Curators; Maintenance; International Divorce; Domestic Violence and more.