The mediator is not a judge and does not render decision or impose a solution on any party. Rather, the mediator helps those involved in the dispute talk to each other, allowing them to resolve the dispute amongst themselves. The mediator manages the mediation session and remains impartial.
People famously say that a women is not just a woman. She takes on various important and life changing roles in life. She is daughter, mother, wife, daughter – in – law, sister, niece, grand daughter and in the present day a successful professional. Like a woman, a mediator is also not ‘just a mediator’. At every stage of the mediation process, the mediator assumes significant and varied role which he plays to facilitate a resolution between the disputants.
Convener: The mediator may assist in contacting the other party(ies) to arrange for an introductory meeting.
Communicator: We often do not listen to what others are saying to understand them. We listen to them only to prepare our reply to counter what they are saying. This is very common between disputing parties. They have made up their mind and they are reluctant and almost unwilling to change their perception about each other. In such a situation, the mediator must transmit positions, ideas, emotions and convictions in such a way that they understand each other. Mediators must also realise that people frequently communicate indirectly.
Parties sometimes fail to reach settlement not because what is said is objectionable but the language in which statements and proposals are couched triggers fear or automatically generates another negative response. the mediator’s function in such a situation is to reframe communications into language that increases the probability of a favourable response and understanding instead of retaliation. The mediator never camouflages or eliminates information when translating; the task is to reduce the sting of ill – chosen words.
Chairperson: Every mediation session is as important as scheduled business meeting. The mediator much structure this meeting to facilitate discussion on contentious issues in a time bound manner. The mediator is responsible for working with the parties and their representatives and scheduling the number, time and place of meetings, for establishing the format of each meeting and the number of persons who participate and arranging for making computer, photocopying, telephone and other support services available for the parties. Subsequently, the mediator is responsible for focusing the discussion to the disputed issues, controlling participant behaviour and sustaining a positive conversational dynamic throughout the meeting between the disputing parties. A mediator performs this function in every dispute, although the extent to which it applies varies with the situation.
Stage Manager: This is the modern style of mediation. When the parties are clueless about the undercurrents of their dispute, the mediator asks many questions about the facts and evidence in the case. The mediator then uses questions to probe the parties’ perceptions and positions. The mediator primarily focuses on the process and induces the parties to talk about liability, costs, damages, verdicts in the area, risks, high – low average values for the case, perceptions of the society. The mediator then employs multiple joint sessions, assists and encourages parties to communicate directly and be their own solution finders. Like a stage manager, the mediator works behind the stage outside the sight of the audience and sometimes even the actors (in this case the disputants). The mediator should not use coercion or ‘arm twisting’ to force settlements. If he cannot mediate the settlement, he will mediate the process so you always obtain some results from mediation.
Clown: Many a times the temperature in a mediation room reaches peak and the parties to a dispute may come to a breaking point. At such tense moments when the emotions of the parties are scattered all over the mediation room, the mediator diffuses the tension. Many times the mediator acts as a clown and brings eternal optimism in the face of failure or emphasises on the need to living life to the full in society that praises efficiency, success, achievement and productivity. The mediator, like a clown requires the skill of improvisation on the spot. No matter how much a mediator prepares, you never know how the disputing party will react and how situation will have to be countered and improvised to act as tool and not a hurdle in the therapeutic process and bring a smile on the face of a disputing party who see no light at the end of the tunnel.
Educator: The mediator must understand the technical aspects of each proposal and empathise with the aspirations of parties. Like an educator who must understand the comprehension capabilities of its class, the mediator must be able to effectively convey that information – using language, descriptions and explanations to make the parties understand and enable them to act based on their enhanced understanding.
A mediator also teaches and models negotiating behaviour. Sometimes parties assume that negotiating requires certain types of conduct such as shouting, lying or belittling an individual, or simply demanding a proposed solution without providing an explanation. A mediator, as a coach, educates participants – both parties and their representatives – about constructive negotiating behaviour.
Translator: When necessary, the mediator can help rephrasing or reframing communications so that they are better understood and received.
Agent of Reality: If a party’s proposal appears impractical or inflated, the mediator must help its viability and ultimately emphasise that in light of the discussion the proposal appears unobtainable. The mediator must be able to identify for each party what is doable in light of the interests and resources of the other parties to discussion.
The mediator should not reduce the reliability of the process by exploit proposals that are impossible or outrageous. The mediator should not be so thorough as to believe that the parties ought to consider in detail every suggestion or offer that is made. Many times the parties get stuck on events that have happened in the past and cannot be reverted or nullified. The mediator serves the parties well by eliminating fruitless discussions that will never advance a negotiated agreement.
Guardian of Durable Solutions: Even in our personal capacity of a friend or family, we have a tendency to think that we can offer an instant solution to person’s problem. However, we tend to forget that what works for us may not work for the other person. The mediator should not impose on the parties his own judgement or preference as to how a problem should be resolved. But the mediator must consider the consequences of what people are agreeing to and try to ensure that the agreement they develop will last.
Questioner and Clarifier: The mediator explores issues between the parties and confirms each others’ understandings to ensure that the participants and the mediator are on the same page in relation to the dispute.
Resource Expander: A mediator must increase the range of resources that parties use to resolve their dispute. She can do this by generating additional information germane to the controversy, suggesting new ideas for settlement when the parties are stuck, setting up meetings between the parties and individuals to whom they had previously lacked access, and leveraging other services that can help the parties resolve their concerns.
Scapegoat: The mediator can be the lighting rod for the parties’ frustrations and concerns. The mediator sometimes serves as post on which disputing parties hang and even overburden excuses. This can also help the party redirect the vengeance they feel towards each other.
Protector of the Process: The mediator is responsible for protecting the integrity of the mediation process as a useful vehicle to help parties to disputes. Sometimes a party has no genuine interest in talking with each others about what she is doing or planning to do, but is merely using the mediator and the process as a tactical decoy to help achieve an end. The mediator must promptly quash any such effort.
Catalyst: By offering options for considerations, stimulating new perspectives and offering reference points for consideration, mediator serves as a stimulant for the parties reaching agreement.
Responsible Detail Person: The mediator manages and keeps track of all necessary information, writes up the parties’ agreement, and may assist the parties to implement their agreement.
These ever changing hats constitute the mediator’s job through the mediation proceedings. They make a mediator’s presence a value done, although they certainly are not designed to help win a popularity contest. At the end of the day, what is important is that the parties must live with the agreement, not with the mediator. The mediator is a catalyst in the mediation reaction. A mediator’s participation affects the dynamics of disputants interact with one another. The mediator cannot be negligent in executing his tasks. The mediator’s disinterest can increase tension, antagonise parties, and shatter the possibility for agreement. In other words, a mediator can do permanent harm to the disputing parties’ relationship. The mediator must perform the job conscientiously and constructively to help parties reach acceptable terms of settlement.
- Canadian Transportation Agency
- The Art of Negotiation and Mediation – A Wishbone, Funny Bone and A Backbone, Anuroop Omkar & Kritika Krishnamurthy