The Mediator is usually a qualified professional – preferably, one who has some understanding of the issues in the dispute (such as an experienced attorney) and must of course have trained as a mediator. He or she is in charge of the actual mediation proceedings in respect of the issues being discussed by the parties themselves. However, the Mediator is not involved in the case itself; we often refer to the Mediator as being a referee, as opposed to being a player.
The mediator must be a neutral party, so as not to disrupt or influence the parties. There must be no interference with the freedom of the parties to discuss any issue and to arrive at an agreement. That agreement can go outside of the apparent parameters of the dispute, if the parties agree to do so. For example, in a divorce, the parties may agree to mediate the division of their joint estate and only that. When an agreement is being concluded, the parties may include something that had not been considered at all in legal correspondence or court documents; for example, in exchange for the wife waiving her claim for maintenance, the husband may agree to buy her a new car. Had they not agreed this, the court could not have awarded it – the court can only grant, or decline to grant, something that was referred to in the court papers or a written Agreement of Settlement. By contrast, mediation is far more flexible. In any dispute, the parties to a mediation can decide how to settle their dispute. They are not bound by the strict legal wording of the court documents. This gives them flexibility, permitting the settlement of many more cases than was historically the case; there were so many cases awaiting trial dates, that it took years to get a case to trial. It is still a problem, but for the reasons explained in the next blog title, “Who Will Attend the Mediation”?, the backlog of cases in courts is decreasing – lawyers are now required to make every effort to resolve disputes without actually taking cases to trial, although some are still notorious in keeping cases going just to build the fees.
Back to the point under discussion – i.e. whether a mediator can interfere with the agreement being entered into by the parties. The answer is, generally, ‘No’. He or she will not make a judgment on any of the issues between the parties, save in some cases and extreme circumstances. For example, in one of the divorce mediations over which I presided as mediator, the parties purported to agree that the father of the sole child of the marriage would pay a lump sum of R100 000.00 in full and final settlement of any future or further claim for maintenance. I was obliged to tell them that such an agreement was illegal, as it purportedly ended the father’s duty to maintain the child. A psychologist colleague, also a mediator, argued with me, saying I had overstepped the mark by giving legal advice during a mediation hearing, thereby going beyond the bounds of my duties. He was wrong – to have permitted the parties to enter into an unlawful agreement would have amounted to a very basic, irresponsible and reversible error on my part. However, the example shows why an attorney should be the mediator in such an instance. Alternatively, it is possible to have more than one mediator in a case – this is often seen in international disputes, which may include many complex issues, requiring experts in different fields of expertise. If he thinks it necessary, a Mediator can advise the parties that it may be necessary to call in an expert, to give factual advice to both parties, to help them decide.
The mediator has a duty to assist the parties in maintaining momentum in their discussion and furthermore, must help the parties to maintain equality, by not permitting either party to use threatening, disruptive or bullying language. In addition, the mediator can intervene if it becomes apparent that one party is a far more powerful, or tricky, negotiator. One way to do this, is to separate the parties and to continue to manage the mediation via “shuttle diplomacy”, moving between the two venues to carry messages to the parties. Often, those messages will have been ‘sanitised’ by the mediator, to remove any threats or other undue influence.