Civil Engineering Reference
In-Depth Information
It may be an easy option. Better to keep the parties focused on their
solution rather than respond to a (ego-boosting?) request for a rec-
ommended outcome.
The mediator's focus should be on giving the parties the best oppor-
tunity to achieve a settlement. Their problem, their solution. The media-
tor's opinion should be irrelevant and a request for a recommendation,
whether it be in the mediation agreement or not, should be resisted.
7.9
Mediator liability
There are very few areas where the mediator may be vulnerable to a
negligence claim, and this is borne out by the very low professional
indemnity insurance premiums. There are, as yet, no successful claims
against a commercial mediator in the UK, but potential areas are
giving an opinion
writing the settlement
breaking a confidence
coercing a settlement
all of which are fundamental taboos for mediators. Mediators facilitate
deals. They manage a process which is client-focused and based on
confidentiality and which gives the parties the power to decide their
destiny. So no mediator should be vulnerable to the above risks.
Chapter 7 in a nutshell
Mediation offers certainty.
The outcome is up to the parties, not the lawyers or the
judge/arbitrator.
Deals with dignity allow parties to leave with their heads held
high.
Requesting a mediator's recommendation changes the dynamic
and focus of the mediation and the neutrality of the mediator.
Have a draft settlement agreement available in preparation for
the likely deal.
Have specialists/experts on call if the agreement is likely to have
tax or other implications.
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