If you’re engaged in a dispute and seeking a structured yet flexible path toward resolution, mediation can be a useful way to address the disagreement. But what role does a mediator play in conflict resolution? In this article, we’ll explore a mediator’s key responsibilities, the ethical and professional mediation guidelines they should follow, and the important boundaries that define — and limit — the mediator’s role.
What is the Mediator’s Role?
In mediation, the mediator acts as a neutral third party who helps parties with a dispute engage in a constructive negotiation to work toward resolution. Mediation is a voluntary, neutral, and confidential process in which the mediator helps parties attempt to reach a settlement agreement. While the mediator facilitates the discussion, they do not impose a binding decision on the parties at the end of the process.
How Does a Mediator Facilitate Mediation?
Mediation creates a structured environment where parties can better understand each other’s concerns and explore mutually acceptable solutions. The mediator supports this end by helping the parties explore the important facets of the conflict, clarify their concerns, and find potential areas of agreement. The mediator helps parties navigate complex topics, stay focused on the most important issues, and encourages discussion by asking relevant questions.
How Can a Mediator Help If the Parties Have Already Tried to Negotiate?
Negotiation is an informal process where the parties attempt to resolve the dispute themselves without external guidance. While negotiation can be a useful dispute resolution method for some conflicts, a neutral third party may help. A mediator is an expert in conflict resolution techniques and uses specific methods and approaches to move discussion along in ways that are difficult to achieve without help.
The mediator’s impartial, outside perspective can also help parties understand their conflict more logically and holistically. Even if mediation does not fully resolve the conflict, working with a mediator can help parties be better prepared for future negotiation or escalation of the dispute via arbitration or litigation.
Key Qualities Mediators Should Have
Mediators are generally skilled communicators and adept at finding creative solutions to help parties navigate contentious issues. Although a mediator’s temperament and mediation style may vary, in general mediators should have strong patience, active listening skills, and empathy. Along with formal mediation training and subject matter expertise, mediators should be able to remain calm in high-stress situations and skilled at navigating conflict when emotions run high.
What Does a Mediator Not Do?
A mediator can be a helpful facilitator and guide for parties navigating dispute resolution. However, it’s important to understand the limits of the mediator’s role:
A mediator cannot give legal advice to the parties. Even if a mediator is a licensed attorney and has relevant legal experience or certifications, a mediator is prohibited from giving legal advice to any of the parties. If the parties need legal advice during the mediation process, they must consult their legal counsel.
A mediator does not favor one side or attempt to advocate for one side’s position. During the mediation session, the mediator must remain neutral and unbiased. If a mediator tries to convince one side to take a certain position for the opposing side’s benefit, they can violate the principles of neutrality and fairness that are central to standard mediation guidelines and ethical principles.
A mediator does not impose a binding decision. The mediation process focuses on party self-determination. In a mediation case, the mediator acts as a guide who helps the parties navigate a productive discussion but does not issue a final decision that settles the dispute. The parties themselves ultimately decide whether they want to settle, what the terms of any settlement will be, and whether to sign a written settlement agreement.
What Ethical and Professional Guidelines Does a Mediator Follow?
Professional mediators who work with an established administering organization, such as the American Arbitration Association® (AAA®), must follow standards and ethical guidelines. At the AAA, mediators follow the Model Standards of Conduct for Mediators. In addition, each AAA Mediation is administered under the appropriate Mediation Procedures.
These standards provide a framework for how mediators should conduct their mediation sessions. This includes guidelines on how mediators should respect party self-determination and remain impartial and unbiased. These standards also outline how mediators should avoid conflicts of interest, maintain confidentiality, and adhere to certain standards of competence. A mediator should be honest and fair throughout the session and avoid setting unrealistic expectations or misleading the parties in any way. Specific rules of conduct and legal standards that mediators must follow may also vary by jurisdiction.
How to Find the Right Mediator for Your Dispute
It can be helpful to work with an administering organization to find a mediator for your dispute. At the AAA, mediators must meet strict qualification criteria to even be considered for inclusion on the AAA Panel of Mediators. They also adhere to ethical guidelines and standards of conduct and have at least a decade of senior-level experience in their field. Our panel features mediators with extensive experience across practice areas, including commercial, construction, consumer, employment, labor, and family mediation.
Whether you’re initiating mediation through a dispute resolution clause in your agreement or looking to start a mediation case without a prior contract, the AAA can help you get started. After initiating a case, the AAA encourages the parties to visit AAAi Mediator Search to try to agree on a mediator. If the parties are unable to agree, the AAA can provide them with a list of potential mediators to choose from. If you’re considering mediation, visit our site to learn more about how the process works, our experienced panelists, or related forms and fees: