The Role of the Mediator

Can there be a mediation without a mediator? The short answer is no, for the same reason that a sporting event requires a referee. Although mediator styles may differ, every mediator is entrusted with the duty to assure fair play during the mediation. This can be a daunting task when the disputants have a history of animosity.

The major U.S. mediator organizations have promulgated codes of ethics that define the role of the mediator and provide direction on how to guarantee fairness. I will highlight those standards common to all the codes that apply to both professional and volunteer mediators.

First, a most important task for a mediator is to remain impartial and evenhanded with all the participants in a mediation. If there is some circumstance that might compromise impartiality, such as a conflict of interest, it must be disclosed by the mediator.

Second, a mediator has the duty to explain the mediation process at the outset. He or she must inform the parties that they alone will determine whether they reach an agreement, and if so, the terms of that agreement. The mediator must impress upon the participants the importance of fair dealing, including the disclosure of all information relevant to their dispute.

Third, the mediator guides the parties through the mediation by maintaining a balance of power between the disputants, identifying and summarizing the issues as they are presented, and assisting the parties in determining and testing alternative resolutions. Above all, he makes sure that the parties listen to one another and understand each other's position.

Finally, because mediation is a confidential process, the mediator must explain what can and cannot be disclosed outside the mediation. For example, if the parties reach an agreement, and it is reduced to writing, the agreement itself can become a legally enforceable contract. The content of the discussions leading up to that contract, however, would be protected by the confidentiality arrangement that controlled the mediation. Also, it is common for mediators to be immune from subsequent subpoena to testify regarding the mediation negotiations.

If you would like to read the ethical codes of the most influential mediator organizations, they can be found at the following sites:

Model Standards of Conduct for Mediators, created by a joint committee of the American Bar Association, the American Arbitration Association, and the Society of Professionals in Dispute Resolution, http://www.adr.org/ standard.html.

Standards of Practice for Divorce and Family Mediation, promulgated by the Academy of Family Mediators and the Association of Family and Conciliation Courts, http://www.mediate.

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