10 MISTAKES THAT MEDIATORS SHOULD AVOID
Whether due to mandatory mediation in certain
jurisdictions or parties’ general desire to find an
alternative to courts and the litigation process,
mediation is increasingly being used to resolve
employment law and other legal disputes.
Mediation can be an incredibly useful tool to assess risk, evaluate
a case’s strengths and weaknesses and negotiate a mutually benefi-cial
settlement. Mediation may also cut down on the delays, costs
and the uncertainty typically associated with our system of Justice.
The likelihood of successfully mediating a resolution signifi-cantly
depends not only on the parties’ willingness to resolve, but
also on a mediator’s experience and skill set, as well as that of the
parties’ lawyers. With that in mind, the following list considers 10
mistakes that mediators should avoid and how lawyers can assist
mediators to reach a resolution.
1. ACTING AS MESSENGERS
Too many mediators shuttle between the parties, only to articulate
each side’s position or exchange formal offers. This approach does
not add value to the mediation process. Further, it may encourage
the parties to negotiate by making unrealistic demands or settlement
offers in the hopes of ultimately meeting in the financial middle.
2. JUDGING THE CASE OR TAKING SIDES
While mediators may highlight the strengths and weaknesses of
each party’s case and demonstrate evaluative reasoning in order
to assist the parties to reach a settlement, they must not overreach
by judging a case on its merits or advocating for one party’s posi-tion
3. ARGUING AND BEING DIFFICULT
WITH THE PARTIES
Mediation is a facilitative and collaborative process that is not well
served by many litigation tactics. All parties, including the mediator
and the lawyers, must anticipate how others will react to what they
say and do. When the mediator sets a respectful, professional and
collaborative tone for the session, others will follow suit. If not, the
mediator can insist and enforce the process. The mediator must be
hard on the issues, hard on the facts, but easy on the people.
By Peter Israel
kenta210 / 123RF Stock Photo
HRPROFESSIONALNOW.CA ❚ AUGUST 2018 ❚ 11