The Mediator
This note will discuss who a mediator is, his qualities and role, the number of mediators in a mediation proceeding, the statutory duties and powers of the mediator, and how the mediator is appointed and replaced.
Who is a Mediator ?
In Section 135 of the Alternative Dispute Resolution Act, 2010 (Act 798) , a mediator is defined as follows:
“mediator” includes an impartial person appointed or qualified to be appointed to assist the parties to satisfactorily resolve their dispute and employees and persons hired by that person.
In Black’s Law Dictionary, 9 th ed., a mediator is defined as follows:
A neutral person who tries to help disputing parties reach an agreement.
Qualities of a Mediator:
Given who the mediator is and what he is expected to do, he must have the following qualities:
1. Understanding:
To help the parties resolve their disputes, the mediator must have the ability to understand the core issues of the dispute, underlying interests, concerns, and aspirations, among others.
2. Judgement:
Judgement in mediation refers to a mediator’s ability to assess situations wisely, make sound decisions, and guide the mediation process effectively. While mediators do not impose decisions like judges, they must use their judgement to manage discussions, evaluate options, and ensure a fair and productive resolution.
3. Intuition
Intuition is the ability to understand or sense something instinctively, without the need for conscious reasoning. The mediator must be able to read situations, interpret emotions, and anticipate challenges without relying solely on logic or explicit information. The reason for the non-reliance on logic is that human emotions and positions are not always logical. Consequently, if a mediator relies solely on logic, he is likely to miss a host of emotions that shape people’s positions. The reason for the non-reliance on explicit information is that people do not always reveal all the basis for their positions.
4. Creativity:
A mediator should be able to create options for mutual gain by thinking beyond rigid positions and exploring innovative solutions that satisfy both parties' underlying interests. Creativity allows mediators to facilitate agreements that might not be obvious but are effective and acceptable to all involved.
4. Trustworthiness
For parties to be willing to disclose information to the mediator, they must be certain that the mediator can be trusted with the information. A mediator who is not trustworthy will have information withheld from him.
5. Ability to Exert Authority:
To be able to help the parties resolve their dispute, the mediator must be able to guide discussions and maintain order during the proceedings. If a strong party can impose his will on the other party, the mediation process becomes unfair and ineffective.
6. Empathy
Empathy is the ability to understand and share the feelings of others. The mediator must be able to connect with the emotions and perspectives of both parties. This helps build trust and create an environment where meaningful discussions can take place.
7. Ability to Cope and Deal with Unusual Situations:
A mediator must be adaptable and capable of handling unexpected challenges, high-tension moments, and unique disputes that arise during mediation. Every case is different, and some situations may require quick thinking, emotional resilience, and creative problem-solving.
8. Independence:
The mediator must not be influenced by external pressures, personal biases, or the interests of any party involved in the dispute. Independence ensures that the mediation process remains fair, neutral, and focused on mutual resolution rather than favoring one side over the other.
Role of the Mediator:
In a mediation proceeding, the mediator plays various roles. These are now discussed:
1. Facilitator:
A facilitator is a person who makes an action or process easy. A facilitator may also be defined as a person who brings about an outcome, such as the resolution of a dispute.
The mediator facilitates in the following ways:
i. Reframe the conflict: This involves changing the way a conflict is presented so that it is seen as a problem to be solved rather than a battle to be won. The parties are also made to see the conflict as the problem and not each other.
ii. Refocus attention on areas of possible agreement: This involves steering the conversation away from conflict points and toward areas where parties can agree or compromise. For example, if two business partners are arguing about profit-sharing, and it appears they both want the business to succeed, the mediator may refocus their attention on the fact that they must adopt a revenue sharing model that keeps the business strong.
iii. Encourage the parties to actively listen: During mediation, it is possible for the parties to be simply waiting for their turn to speak or listening for the purpose of rebutting or disputing what the other party is saying. A mediator can encourage the parties to actively listen to understand and appreciate what is being said. This is essential to enable parties to feel heard and understood, which contributes to the resolution of the dispute. Among others, the mediator encourages active listening by asking parties to paraphrase what the other party has said and setting ground rules on non-interruption.
2. Opener of the Channels of Communication:
In mediation, parties may be more comfortable talking to the mediator than to each other. This is particularly true if a party believes the other party does not or will not listen when he speaks. While talking to the mediator, the other party will invariably listen to what is being said and may begin to understand the speaker’s position and subsequently engage.
3. Translator and Transmitter of Information:
In mediation, communication is often hindered by misunderstandings, emotional reactions, and differences in communication styles. The mediator plays the role of a translator and transmitter of information by ensuring that messages are clearly understood by both parties, preventing confusion and unnecessary conflict.
To illustrate, a party may say, “you are a terrible business partner who never listens.” This may be translated into “My opinions are not considered in decision-making.”
This role is particularly important because parties communicate with emotion, accusations, and vague language. The mediator needs to reframe or translate information into such a form that is devoid of such emotion and vagueness.
4. Distinguisher Interests and Positions:
In most disputes, people adopt positions based on their interests. However, the same interest can lead to different positions, and conflicting positions do not always mean conflicting interests. The mediator helps distinguish between positions (what people demand) and interests (why they demand it) to guide parties toward mutually beneficial solutions.
5. Agent of Reality:
The mediator helps parties to see their dispute from a practical, objective perspective. Often, parties hold unrealistic expectations about their rights, demands, or the possible outcomes of the mediation. The mediator’s role is to guide them toward reasonable, achievable solutions rather than letting them stay stuck in rigid or impractical positions.
6. Conflict Assessor:
To be able to resolve the dispute, the mediator must have an in-depth understanding of the conflict from the point of view of all disputants.
7. Impartial Convenor:
A convenor is a person who calls other people together for a meeting or a proceeding. The mediator must act as an impartial convenor. In doing this, the mediator must create a neutral and respectful atmosphere where all the parties and their views are treated with respect. Put differently, the mediator must create an atmosphere where no party dominates the discussion.
The mediator must also ensure that the parties are willing participants. Thus, in convening, the mediator must ensure that one party does not feel forced to be at the mediation, and the mediator must not force a party to be at the mediation.
8. Expander of Resources:
The mediator helps the parties resolve their dispute by ensuring that all resources that could help them in the resolution of their dispute are utilised effectively. Among others, the mediator may refer parties to external sources such as valuers, planners, or surveyors.
9. Obtain Closure:
A mediator plays a crucial role in helping parties obtain closure by ensuring that the dispute reaches a clear, final, and mutually acceptable resolution. Closure is essential because unresolved conflicts can lead to ongoing tension, resentment, or future disputes.
Statutory Duties of the Mediator:
Beyond the general duty on the mediator to assist the parties to a dispute to resolve the dispute, Act 798 imposes the following specific duties on the mediator.
1. Duty to Make Disclosures of Interests and Circumstances that can Create Bias, Affect Impartiality, and Affect the Conduct of the Mediation:
Section 68 of Act 798 requires a mediator to make disclosures of circumstances that may affect the conduct of the mediation in two instances: the first is prior to accepting the appointment to be a mediator, and the second is during the course of the mediation.
Prior to accepting the appointment to be a mediator, a mediator must disclose any circumstance that may:
i. create a likelihood of bias; or
ii. affect the conduct of the mediation.
During the course of the mediation, the mediator is required to promptly disclose to the parties any circumstance that arises during the mediation which is likely to affect:
i. His impartiality; or
ii. The conduct of the mediation.
2. Duty to be Guided by Principles of Objectivity, Fairness, and Justice:
In Section 74(5) of Act 798, it is provided that:
A mediator shall be guided by principles of objectivity, fairness and justice, and shall give consideration to, among other things, the rights and obligations of the parties, the usages of the trade concerned and the circumstances surrounding the dispute, including any previous business practices between the parties.
3. Confidentiality:
In Section 79(2) of Act 798, it is provided that:
A mediator shall not disclose information given in the course of the mediation to a person who is not a party to the mediation without the consent of the parties.
4. Authenticate Settlement Agreement:
If, at the end of a mediation, the parties reach an agreement on how to resolve their agreement, the agreement, known as a settlement agreement, shall be authenticated by the mediator and be copied and given to the parties. This is provided for in Section 81(4) of Act 798, which reads:
The mediator shall authenticate the settlement agreement and furnish a copy of the settlement agreement to each of the parties.
5. Duty to Refrain from Acting as a Representative of any of the Parties in Other Proceedings:
Post-mediation, the mediator is under duty to refrain from acting as an arbitrator, representative, or counsel of any of the parties in subsequent proceedings. This is provided for in Section 84 of Act 798, which reads:
84. Unless otherwise agreed by the parties or required by law,
(a) the mediator shall not act as an arbitrator or as a representative or counsel of a party in any arbitral or judicial proceeding in respect of a dispute that is the subject of the mediation proceedings; and
(b) the mediator shall not be presented by the parties as a witness in any arbitral or judicial proceedings arising out of or in connection with the dispute mediated upon.
6. Duty to Render Accounts and Return Unexpended Balance to the Parties:
In Section 88, the mediator has the power to direct each party to deposit an equal amount as an advance to cover mediation expenses such as the fee of the mediator, fees charged by experts, expenses accruing from administrative assistance, or any other expense incurred in connection with the mediation.
At the end of the mediation, Section 88(4) of Act 798 provides that:
The mediator shall render an account to the parties of the deposits received and shall return any unexpended balance to the parties.
Statutory Powers of the Mediator:
Section 74 of Act 798 makes the following provisions on the powers of the mediator. These may be summarised as follows:
1. Power to do all that is necessary to help the parties satisfactorily resolve their dispute.
2. Power to hold joint or separate meetings with the parties where suggestions may be made to facilitate a settlement.
3. Power to obtain expert advice on a technical aspect of the dispute if necessary and if the parties agree to pay the expenses associated with obtaining expert advice.
4. Power to conduct the proceedings in a manner he considers appropriate, taking into consideration the wishes of the parties.
5. Power to end the mediation if he is of the view that further mediation will not resolve the dispute.
Number of Mediators:
In Section 65 of Act 798, the default number of mediators in any mediation proceeding is one. However, the parties may agree to have more than one mediator. If this is the case, subsection 2 provides that the mediators shall act jointly.
Appointment of Mediator:
In Section 66 of Act 798, it is provided that the appointment of a mediator is done by the parties. They may appoint any person they deem fit.
Further, the parties may request assistance in appointing a mediator. For instance, they may request another person or an institution to recommend names or provide a list of suitable persons to serve as mediator. When such assistance is sought, Section 67 requires that the person or institution from which such assistance is sought should have regard for the independence and impartiality of the person or list of persons he recommends to be mediator.
Replacing a Mediator:
Section 69 of Act 798 provides for when the parties may replace a mediator. It reads:
The parties may replace a mediator who without reasonable cause fails to
(a) start work within the period agreed by the parties; or
(b) operate within the ground rules of the mediation.
In addition, Section 70 allows the parties to replace a mediator who is unable to perform the functions of a mediator.