In a mediation, the role of the mediator will be to act as a neutral between two or more parties to a dispute. The mediator is not a judge, and will not determine who is right.
Instead, the role of the mediator it to help the parties craft a solution that is mutually acceptable. To do so, in most mediations, the parties will be in separate rooms, and the mediator will spend time going back and forth between these rooms and speaking to the parties, and conveying the offers of the other parties.
The mediator is under confidentiality restrictions. First, the mediator cannot discuss the conflict outside the mediation, except under very limited circumstances (such as those that might have to do with a settlement agreement reached, or if one party physically threatens the other party).
Second, anything said to the mediator about a party’s internal deliberations is confidential. The mediator will only provide settlement offers and other messages from one party to the other upon being instructed to do so by the first party.
Often, parties to a mediation will believe that if they can convince the mediator that they are going to win at trial, the mediator will then work on their behalf to “lean” on the other party and tell the other party that they need to settle. This is not the role of the mediator. Instead, the mediator’s role is to try to help the parties reach a settlement that is mutually agreeable.
Certainly, however, having a strong case is helpful. The mediator (and the opposing party) should know exactly what a party’s position is – “this is our position, this is why we believe we will win at trial, and here are the facts and legal analysis that support our position.” Also, as mentioned here, the more that a party has clearly worked in advance to determine its strategy and “bottom line”, the more effective that the mediation will be with respect to the party obtaining its objectives through a settlement.
While the strength of each party’s case will be inherent in the background of the mediation discussions, it’s important to realize that the purpose of the mediation is not to argue about who will win at trial, it’s to reach a resolution.
In this respect, mediators vary depending upon their particular approach. Some may offer their “neutral” opinion on the merits of the case. Other mediators will be actively involved in helping craft solutions. Regardless of the approach, most mediators will use various techniques to slowly bring the parties together.
Suppose a person is injured, and is suing a business for $500,000 for causing the injury. The business believes that it is not liable. A mediator may start by getting each party to move off of its position. For instance, the mediator might say the following to the business:
Clearly the injured person is not going to accept nothing for their injury. In the interest of moving the mediation forward, would you be willing to offer $25,000 if they reduce their demand to $450,000?
The mediator knows that the business will not agree to pay $450,000, and the injured plaintiff is not willing to accept only $25,000. All the mediator is trying to do is to get the process started and to get each side to compromise. Alternatively, the mediator might have the parties focus on the amount of the damages sustained without focusing on fault.
By better understanding the role of the mediator and the mediation process, mediation participants will be in a much stronger position to seek a favorable outcome.