At a recent mediation, it occurred to me that one party had missed an important issue in the case.
What then is the duty of the mediator ? This may be of more significance where the mediator plays an evaluative role, as opposed to the more benign function of a facilitator.
Should they advise the party who has not raised this issue of this failing ? If this is answered affirmatively, presumably this information must be shared with the opposing party and also the fact that it was the mediator who has raised the issue.
Or should the mediator say nothing to either party ?
To my knowledge, there is no authoritative statement to be found on this issue in any of the institutional “rules”, such as the ADR Institute of Canada or any similar body.
One view expressed by a mediator far more experienced in the art than myself, Barry Fisher, is that this issue may be raised solely to the second party, as an incentive to settle immediately, lest the defect be rectified at a later stage.
With respect, this appears to be unfair to the other party. The flaw has been revealed to only one side, clearly in the interests of settlement, yet hidden from the second.
This raises many higher level issues, such as:
Is it ethical to raise this argument to only one side?
Who is the master of the mediator’s role ? Is it the goal of settlement ? Perhaps so.
Or is the objective to obtain the fairest settlement, justice in that sense?
It would seem to me that the path to be followed is to tell both parties of the apparent issue or neither. In the instant case before myself, I said nothing to either party.
I remain unconvinced that this is the correct decision.
The case did not settle. Perhaps it would have, had I raised the unpleaded issue.
My mandate in the case is well ended yet it troubles me that this issue remains.
I remain unconvinced by the seemingly strong support from many mediators that the third party neutral should remain silent.
Hey David, enjoyed reading this peace. I too have experienced this problem in mediations and while am not as black and white as Barry (seldom am ) I agree with him that it is not the role of the mediator to tell the other side and in fact it may be in breach of that role to do so. There obviously is no easy answer but I usually find a solution without braching any obligation or duty to the parties or any of them.
The other major issue for me and I would benefit from your views is when I am quite certain that the plaintiff would accept 100 dollars and the defendant is willing to pay 175. What would you do as a Mediator?
Hey David, Happy New Year! Thought Provoking piece as many of your pieces are. I too have experienced the quandary you pose. While I very seldom if ever am as ‘black and white” as our good friend Barry I totally agree that we should not (and can not) tell the other side. I too have raised with the mistaken side that the issue will come up as the case continues and may be very embarrassing if it does. I have also found creative ways to settle the matter without resorting to what I consider to be a breach of my obligation and duty to the parties and to fairness. The more perplexing issue for me (and maybe it arises more clearly in my practice which as you know does not exchange offers until the very end where a settlement is reachable) is when I am sure the Plaintiff would accept 100 dollars and the Defendant is willing to pay substantially more. I would benefit from your view and more legalistic take if there is one.