The case of “the suitable mediator”

Dispute Resolution Partner, Dominic Hopkins, offers some thoughts on what makes a suitable mediator.

What makes someone suitable to act as the mediator of a dispute is informed by the purpose of the mediation procedure (to help parties find a route to an agreement), and what’s needed to provide the best prospects of success.

How to find a suitable mediator is not written in a one-dimensional playbook. It’s a multi-faceted exercise.

• Fundamentally, a mediator needs to be able to establish a relationship of trust with all parties involved and do so quickly – it’s easy to lose the confidence of the room and mightily hard to win it back
• Trust must be earned – the mediator needs to build early confidence that they have the skill-set needed to establish and then facilitate the negotiation
• Being able to demonstrate accreditation, training and a CV of experience goes only so far. The mediator must show they understand the fundamentals of the procedure, including the essential carefulness, conscientiousness, discretion and confidentiality with which they will be going about the role
• Key qualities for a mediator are intelligence, practicality and lateral thinking
• Mediators also need to have prepared well; read, digested and understood the papers provided and formed a view (with the benefit of prior consultation with the parties’ legal representatives) on how a constructive negotiation might be facilitated – having a full grasp of their brief is vital
• Neutrality is central to the role – trust in the mediator is not going to develop if they present as ‘the friend’ of any party, nor ‘judgmental’ in respect of any issue or of any person. It is natural for a party to a dispute to want to persuade everyone, including the mediator, that they are in the right. Indeed, a party may well be encouraged by a mediator who appears to side with them or their arguments, but any such perception is rarely going to be in the interests of the party. Where this occurs, the mediator might either be perceived to be partisan, which will alienate the other side, or to be playing both sides; an unhappy scenario either way which reduces the prospects for success of any negotiation
• Independence and objectivity are also fundamental characteristics of a suitable mediator. That independence is often expressed by the term ‘honest broker’, a status that attaches to someone whose only ‘skin in the game’ is a successful negotiation. It’s obvious that independence will be wholly compromised if the mediator is personally interested or invested either in the issues in dispute between the parties or in how the issues may be resolved, or, indeed, if aligned by relationship with one or other of the parties.

President Trump as ‘mediator’

By way of illustration of the point, whatever label the President of the US has placed on his or his nation’s role in seeking to find a resolution to the conflict between Russia and Ukraine, no one will be under any illusion that he or his team are acting as ‘mediator’ in the negotiation.

The President has offered a dichotomy here.

On the one hand, aside from the common interest in saving lives, he has made no real effort to disguise that his nation’s interests underpin his initiatives to find a solution. The warring parties’ respective willingness to offer commercial or other strategic advantages to the US are also seen by him as an essential condition for his supporting influence to find a resolution in the negotiation.

The President is therefore arguably acting as a classic party to the dispute, exercising levers of control that he believes serve his nation’s interests, rather than as a mediator, who acts independently and objectively, to serve the common interests of the parties to find a solution.

However, despite playing the hand of a party, the President has adopted the self-styled role of ‘mediator’. He has done so principally for a domestic US audience and to justify dictating the pattern of the negotiation while at the same time presenting the US as distanced from the outcome to the conflict.

That approach may ultimately be effective for US purposes but does not mean the US is a mediator. Put shortly – and it’s by no means a perfect metaphor – a mediator is not going to be suitable for the role if they are a player in the game.

I return then to the fundamental point. Being able to establish trust with all the parties to a dispute is at the heart of the suitability requirement for a mediator appointment and the selection of a mediator should always consider the various facets that are needed to build that trust.

How to appoint a suitable mediator

Peter Brewer, Dispute Resolution Partner and accredited mediator offers his insights on how to appoint a suitable mediator.

Here are some things to think about when appointing a mediator:

• It’s always worth using a “known” mediator – don’t be afraid to ask colleagues or contacts for feedback about a particular mediator, good or bad
• A pre-mediation call with the chosen mediator can be vital in building a rapport, especially where a party is not used to the litigation process
• A good place to look for a suitable mediator is one of the recognised mediation ‘houses’ as they will have a strong stable of experienced mediators. Their clerking teams will recommend one or more of their panel who are best suited to the dispute. They also vet their mediators, which provides an additional layer of reassurance.

Our Dispute Resolution team includes a number of accredited mediators. If you require mediation, please get in touch with the team.