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Chicago International Dispute Resolution Association
REFRESHER GUIDE MEDIATORS AND MEDIATION
by Erwin I. Katz
FUNCTIONS OF A MEDIATOR
The duties of a mediator begin before the commencement of the actual mediation conference. Your role as mediator will include all of the items below and more.
Setting the Stage
It is the mediator's responsibility to arrive before the mediation to set the room in a conducive manner and make sure all necessary forms, paper, pencils and chairs are available.
Opening Statement
At the commencement of mediation, a mediator has an ethical duty to describe the mediation process and the role of the mediator. The mediator should specifically state that mediation is a consensual process, that the mediator is an impartial facilitator without authority to impose a resolution, and that communications made during the process are confidential, except where disclosure is required by law. Often a mediator will additionally outline the mechanics of the process and ground rules for discussions.
Establishing Trust and Building Rapport
Parties will not confide in the mediator and share the details of their lives unless trust has been established. Mediators accomplish this by word and action.
Questioning
A mediator asks questions to gather information needed to identify issues and interests to move the discussion forward. Questioning is also used to brainstorm possible outcomes and help the parties assess the practical implications of any given course of action.
Listening
A good mediator listens to the parties and acknowledges that they have heard the information shared by clarifying and summarizing. However, a mediator who is always talking is not giving the parties an opportunity to share their thoughts and feelings.
Identifying Issues
During each parties' "opening statement," the mediator identifies the matters that each party would like to discuss. By identifying issues, the mediator is able to assist the parties in creating an agenda for discussions.
Translating
Discussions in mediation between the parties can sometimes become heated. A mediator, through the use of neutral language, translates terms used by the parties into words that do not cause the emotional level of the parties to escalate.
Remaining Impartial
It is an ethical responsibility that a mediator remain impartial and be willing to assist all parties in an equal manner. If a mediator is unable to remain impartial, the mediator should withdraw from the mediation.
Empowering Parties
The right to decide on any proposed outcome or participation within mediation rests with the parties. An effective mediator should convey to the parties that they are in control of all decision-making throughout the mediation.
Reality Testing
A mediator will help the parties to determine whether alternative courses of action are attainable and if they realistically meet their interests.
Writing the Agreement
If an agreement is reached, an agreement is written at the end of the mediation. The agreement needs to be clear and concise. If one or more parties do not live up to the terms of the agreement, the court will need to enforce the terms without the benefit of having been at the mediation. This is the one part of the mediation which is not confidential.
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Peter V. Baugher,
President
One South Wacker Drive, Suite 2800, Chicago, IL 60606 USA
312-409-1373 (Telephone), 312-701-9335 (Facsimile),