M5 - Learner Manual

11.1. Role of the Mediator

The mediator facilitates a process. The mediator cannot make a decision about the outcome of the dispute, or who is right or wrong.

A mediator can help people to:

o   Identify the issues in dispute

o   Consider options for dealing with the issues

o   Reach their own negotiated solution.

A mediator should:

o   Guide participants through discussions about their concerns and issues to help them to explore whether there are solutions that may be acceptable to all involved

o   Be impartial and not take sides

o   Ensure that all relevant concerns and issues in dispute are addressed

o   Assist to break down the relevant concerns and issues in dispute into manageable parts

o   Create an environment where all participants have an equal opportunity to be heard

o   Ensure that discussions do not get out of control

o   Assist participants to examine options for resolving the dispute

o   Assist participants to write down the details of any concluded negotiated agreement.

 

A mediator should not:

o   Provide legal advice

o   Take sides

o   Decide who is right or wrong

o   Make a decision on behalf of participants

o   Make suggestions about what should happen after the conclusion of the mediation

o   Force participants to reach an agreement.

In some cases, mediation is not possible because, for example:

• A mediation is a voluntary process (unless ordered by a court) and one or more potential participants to a dispute may not agree to participation (mediation is voluntary unless a court has made an order that you are to mediate)
• There might be safety concerns or reason to fear violence
• A person involved in the dispute is unable to speak up for themselves or negotiate on their own behalf and this makes mediation unsuitable
• The issue affects the wider community, so that there might be a 'public interest' in having a court decide it, or
• The issues in the dispute are very complex or otherwise not suitable for mediation.

 

The mediator should:

• Explain the mediation process and set the guidelines for how it will work
• Ensure each person has a chance to talk, be heard and respond to the issues
• Keep everyone focused on communicating and resolving the dispute
• Ask questions to help people identify and communicate about what their goals and desires are and why they feel that way
• Help clarify the issues and suggest ways of discussing the dispute
• Help the people in dispute develop options and consider whether possible solutions are realistic
• Try to assist the parties reach an agreement where appropriate and make sure everyone understands any agreement reached, and
• Refer you to other helpful services if required.

 

The mediator must not:

• Take sides, make decisions or suggest solutions - this is for you and the other participants to do
• Tell you what you should agree to do - you decide what to do, including whether to stay at mediation
• Decide who is right or wrong - the focus is on finding a solution that everyone can live with, not making a judgment
• Give legal, financial or other expert advice - you can get advice before, during and after mediation if you choose, and
• Provide counselling - you can get counselling or other support before, during and after mediation if you choose.

If all the participants agree, mediation may also involve support people.