Roles and Duties of Mediator
Role of the Mediator
The principal role of the mediator is to facilitate communication between the parties in conflict with a view to helping them reach a voluntary resolution to their dispute that is timely, fair and cost-effective. Although the mediator manages the meeting and is in charge of the proceedings, he/she should not impose solutions or decisions and has no power to force a settlement. A solution should only be reached by agreement between the parties. They are responsible for the ultimate resolution of the dispute. Furthermore, a mediator has no right or duty to provide legal advice to the parties even if he/she happens to be a lawyer. The parties should seek legal advice solely from their legal counsel. The mediator, however, may raise issues and help parties explore options.
Setting up the first meeting
Following his/her appointment, the mediator will contact the parties or their counsel to fix a date for the holding of the first meeting.
Mediation parties may be assisted by an advocate, legal procurator or any individual designated by them whether before or during the mediation proceedings.
First meeting and review of mediation procedures
At the first meeting, the mediator will:
- request the parties to sign, jointly with him, the Centre’s Model Mediation Agreement setting out the terms and framework for the conduct of the mediation process;
- give a brief description of his role and that of the parties and explain the mediation process with particular reference to the statutory provisions regulating confidentiality;
- discuss with the parties whether they agree to give their consent in writing authorising him/her to hold separate meetings with each of them on an individual basis;
- invite the parties to give a brief account of the facts of the dispute from his/her perspective. This may be done either in joint session or it may be done privately with the mediator provided the parties would have agreed to hold separate meetings;
- ask questions to clarify certain matters for the purpose of assisting the parties overcome any obstacle and explore options for settlement.
Duties of the Mediator
A mediator has the following duties to observe:-
- Code of Conduct
Mediator are required by the Act to follow the Centre’s Code of Conduct for Mediators in the performance of their duties as mediators.
A mediator shall mediate only those matters in which he/she can remain impartial. Impartiality means freedom from favouritism, bias or prejudice both in conduct and appearance.
If at any time the mediator is unable to conduct the process in an impartial manner, or the parties, or any one of them, express doubt on any circumstance concerning the mediator’s impartiality the mediator should withdraw and the Mediation Centre would appoint another mediator in his stead.
- Impartiality and Challenge of Mediator
A mediator may be challenged on grounds of impartiality by any mediation party. When a mediator is challenged he/she should withdraw and be substituted by a new mediator. However, if the challenged mediator does not withdraw, the chairman of the Board of Governors of the Centre will decide on the challenge and his decision will be final and binding. If the Chairman sustains the challenge, a substitute mediator will be appointed by the Centre.
- Notification of Challenge
The party who intends to challenge a mediator should send a notice of his challenge in writing, stating the reasons for such challenge, to the Registrar, the other party or parties and the mediator challenged within 15 days after the party making the challenge has become, or could have become, aware that circumstances exist that give rise to justifiable doubt as to the mediator’s impartiality
- Conflict of Interest
A mediator has the duty and obligation to disclose to the parties any actual or perceived conflict of interest as soon as he/she becomes aware of it whether prior to accepting to act or at any time during the mediation process.
If a mediator has a conflict of interest he/she may only accept or continue the mediation if the parties explicitly consent in writing, provided, however, that if the mediator deems that the conflict of interest gives rise to the slightest reasonable doubt as to the integrity of the process he/she should decline to proceed regardless of the consent of the parties to the contrary.
- Impartiality and Challenge of Mediator
Confidentiality is the cornerstone of the mediation process. The Act stipulates that everything said during the course of mediation, including all communications between the parties and the mediator are confidential and no evidence of anything said or documents produced during the mediation process are admissible in any litigation proceedings. Moreover, the mediator cannot be summoned as a witness on what took place and on what came to his/her knowledge during mediation.
The mediator may, however, disclose to the Court any information obtained during the mediation process provided all the parties to the mediation give their written consent. Furthermore, the disclosure of the content of the agreement reached between the parties is also permitted when required to prevent harm to the physical or psychological integrity of a person or where the disclosure is necessary in order to implement or enforce the agreement reached between the parties.