Is it the job of the mediator to ensure that the parties do a deal? Is that implicit (if not explicit) in our contract with them? At a recent meeting of senior mediators, some took the view that this is what the parties expect. Others considered that the mediator’s role is to provide the opportunity for parties to explore the issues between them, consider the options, and make choices about whether and how to settle.
Whichever view one holds may have implications for the conduct of the mediation itself. If it is about doing a deal, the mediator may well feel more inclined to press parties to agree a figure or indeed to express a view about the outcome. He or she may appear to be more evaluative. The mediator may be thought to have more of a stake in the mediation being a "success" in the sense of resulting in settlement. If settlement looks unlikely, he or she may be more inclined to terminate the process.
If the mediator holds the view that party autonomy prevails, he or she may appear less assertive, more inclined to help the parties discover their true interests, to present the parties with options and to leave them to make their own decisions. The mediator may look for other gains in the process than just doing the deal and may suggest to parties that they adjourn and reflect on the possibilities, before convening again if necessary.
In the first situation, the mediator might be tempted to shuttle back and forth until he or she can announce that a deal has been reached, perhaps basking in the glory of having achieved that outcome for the parties. In the second, the mediator might give the parties themselves the opportunity to make the final moves, enabling them to have a sense of ownership of the final outcome – and dropping back into the shadows.
It might be thought that the former approach is more positional and the latter more interest-based. That is probably too simplistic. It might be the case that the former works better in one-off commercial negotiations where money is the main issue, and that the latter is for those HR or workplace situations where relationships are the key. Again, it’s never that easy.
The reality in mediation is that the best mediators work using a range of techniques and skills of which the approaches described above are only two in a continuum. Different clients and circumstances will require different strategies. Perhaps the key is to discover and manage the parties’ expectations – and to be transparent at the outset about what they want (and need) and how the mediator proposes to handle things. Then, there can be fewer grounds for criticism and more clarity about purpose.