Civil Engineering Reference
In-Depth Information
get the parties committed on the day. But the mediator's responsibility
for a deal that will stick overrides any worry there may be that parties
may have second thoughts if given a cooling-off period. If the deal is
likely to unravel tomorrow then it should not be a deal that will stick
today.
Settlements could be subject to ratification within a day or two, or
firm unless a party withdraws within an agreed period. In the case of
public bodies it is more likely that a period of two weeks or more will
be required to get a committee or authorised officer to ratify the deal.
The deal is whatever the parties agree, and a cooling-off period or time
to obtain final approval is not uncommon.
7.8
Mediator recommendation
In the past, some mediation agreements have had a provision that the
mediator may, if so requested by all parties (and if s/he so agrees), make
a non-binding recommendation for settlement. It is a dangerous clause
and one that most providers have removed and most mediators resist.
Of course, the advantage is that the mediator is in the best position to
know what the parties need to achieve a settlement, so any recommen-
dation is likely to take this into account. However, the dangers are as
follows:
The mediator will use, and may reveal, confidential information
given by one or all parties. With this clause in mind, the parties may
well be inhibited in giving the mediator sensitive information during
the mediation, and thereby lose much of the advantage of having a
neutral third party assisting them in the negotiations
The mediator's recommendation may be accepted by one, or neither,
party and so the mediator's position of neutrality may be destroyed
for the other, or both parties.
The parties may abdicate responsibility for the problem and solution.
Knowing that the mediator may be manipulated into giving a recom-
mendation may change the focus from negotiating a deal to making
the mediator take responsibility for the outcome.
Having given a recommendation, it is likely that the mediator will
not be seen as a neutral go-between in trying to broker a deal for a
mediation that does not settle.
Any recommendation may alienate a party's advisor if it goes against
their opinion.
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