Mediator Roles and Uses in Dispute Resolution

Mediation is a form of dispute resolution overseen by an impartial third party, or mediator. When two or more parties seek to resolve a conflict without resorting to litigation, a mediator can be hired to help further the process.
 
Many people feel unclear about how the roles of advocate and mediator are different. While an advocate (attorney) assumes a clear position and defends his or her client, a mediator will not judge a case or side with one party over the other. Instead, the mediator helps to facilitate discussion, allowing both parties to be heard so they can reach a mutually satisfying agreement.
 
While most certified mediators are also trained attorneys, they will not give legal advice or provide opinions on either side's argument during the mediation process. When the parties reach an agreement, they will put it into writing and sign it, with the mediator as witness, so that it serves as a binding contract.

An Overview of Mediator Roles

The mediator's principal role is to aid parties in reaching an agreement. In serving this ultimate purpose, the mediator may take on a variety of different positions and tasks, including serving as a(n):
  1. Educator: The mediator instructs both parties about the mediation process, shares information about common issues that may come up and discusses standards for the proceedings.

  2. Facilitator: The mediator ensures fairness in the mediation process by allowing each party to be fully heard. Similarly, mediators ask questions to probe and clarify points when misunderstandings arise.

  3. Organizer: After the mediator reads over the mediation briefs submitted by each party, (s)he will arrange an introductory meeting in which both parties state their sides of the argument.

  4. Record Keeper: The mediator keeps track of information during the exchange, helps to write up the parties' agreement when they are ready and may also assist them in implementing the resolution, if appropriate.

  5. Resource: The mediator creates a trusting relationship with both parties and offers suggestions for additional ways to make progress in the mediation, such as consultations with experts or further legal counsel.

How to Best Prepare for Mediation

Although the mediator is responsible for facilitating and organizing a successful mediation, the parties involved can greatly influence the efficacy of proceedings by being well prepared.

Both parties can help the mediator to better know the facts and understand the situation by writing a mediation brief. A mediation brief is a statement of facts and a summary of each party's argument. The mediation brief should be a concise and clearly state the party's position. Written documents or other supplemental evidence can also be included with the mediation statement.

Parties should also be prepared to make a verbal statement of their argument during the mediation proceeding. Writing out the argument beforehand will help each party to formulate an accurate and pithy account of their respective positions.

The Uses of Mediation

Mediation can be used in almost any situation where a dispute has arisen. The key factor in considering if mediation is an option is whether both parties are willing to participate and communicate in order to resolve the problem. Mediation is commonly used in a variety of disputes, including:
  • Commercial: Conflicts that arise between landlord and tenant, business partners or others in commercial situations are all subject to resolution by mediation.

  • Family: Mediation is often seen as a less antagonistic means of resolving complicated family-related issues, including child custody, divorce, estate disputes and eldercare issues.

  • Public: Mediators may be hired to facilitate discussion in environmental or land-use disputes.

  • Workplace: The role of the mediator in workplace conflict is to support communication and resolution of disputes involving harassment, mismanagement, wrongful termination and discrimination.
Resources
 
Cooley, John W. (2000). Mediator & Advocate Ethics. Retrieved March 13, 2008, from the bnet business network Web site.
 
Oregon Mediation Center (n.d.). Roles of the Mediator. Retrieved March 13, 2008, from the Oregon Mediation Center Web site.
 
Reina, Leonard (1999). Mediation vs. Arbitration vs. Litigation. What's the Difference? Retrieved March 13, 2008, from the FindLaw Web site.