The Dispute Clinic

Mediators must always avoid mediating conflicts where they have any kind of interest in the outcome of the dispute whether it be personal, professional or financial. The matter may become more complicated if the mediator has an indirect interest; usually if they know someone that may have an interest in the outcome. Mediators must always disclose any potential conflicts of interest because it gives the parties involved all the information they need to make a decision on whether to mediate with their chosen mediator. In some cases, however, the mediator will overtly decline to perform the proposed mediation because of the complexity of the conflict of interest.

The confidentiality duty that mediators have is two-fold. Firstly, mediators must keep all proceedings of the mediation confidential vis-a-vis third parties i.e. those outside the mediation. Secondly the mediator has a duty of confidentiality when moving between the two parties in conflict. As mentioned on the ‘What is the Mediation Process?’ page, mediators must not disclose any information to either party that was said in the other party’s private session unless the original party has explicitly given them permission to do so.

Mediation requires engagement with the parties involved and understanding of what has gone wrong between them. A mediator must ensure that any opinions they form throughout negotiations do not impact their role as mediator and they remain an independent third party throughout.

Mediators should always make clear to parties that their participation is voluntary meaning they can cease to participate in the mediation at any point – even mediations that are court mandated. If either party is displeased with the mediation process or the mediator themselves, they have the right to cease the proceedings and seek a new mediator. Any agreement that the parties come to but be created of their own free will and a voluntary conclusion to the mediation process.

Linked to ensuring there is no conflict of interest, mediators must also ensure that they know the limitations of their professional ability. They should avoid taking on disputes they are not qualified to handle and communicate with the enquiring parties if they feel the dispute is beyond their capabilities. In some circumstances, parties will want a mediator with expertise in the subject matter of the dispute. Therefore, the mediator must be straightforward about the depth of their knowledge so that the parties are aware of the mediator's abilities.

The parties to the mediated dispute must always be informed as to the process and information that is being shared between parties in order to allow them to give their consent. This also applies to the final agreement between the parties. The final agreement must be written and agreed by both parties and so the mediator should not be a source of information. The mediator is there to facilitate information gathering and active listening between both parties allowing them to give their fully informed consent.