Civil Engineering Reference
In-Depth Information
Interview the pairing to be sure they are suited to the case and the
parties.
4.4.6
Assistant mediators
Having been chosen, the mediator may quite possibly bring an assistant
with them on the day. Indeed they should bring an assistant because
it is the only way that newly trained, and therefore inexperienced,
mediators can safely get experience before they become lead mediators.
From the mediator's perspective it is useful to have another mind and
another pair of eyes to observe and comment, particularly in the short
breaks as the mediator shuttles between private meetings. From the
parties' perspective, having another person with a different background
and experience can only be an advantage. My ideal assistant (with
apologies to all the male assistants who have accompanied me over the
years) is a female lawyer so that between us we cover male/female,
business/lawyer dimensions.
Of course, as will be seen from the confirmatory email earlier in this
chapter, the assistant comes without cost to the parties. The mediator
may pay their expenses but that is a private arrangement. And, of course,
the assistant is bound by the confidentiality provisions of the mediation
agreement and will, with the mediator and the parties, sign the agree-
ment on the day.
4.4.7
Conflicts of interest
The matter of conflicts of interest is increasingly relevant, particularly
to lawyer mediators who belong to large firms. I consider it to be largely
nonsense and, in the context of mediation, to have gone to ridiculous
lengths. The role of the mediator is to give the parties their best chance
of getting a settlement. S/he has no interest in the outcome, and 'favour-
ing' one side would have little or no effect. The mediator does not make
a decision - that is the parties' role. The fact that a partner in another
office of the mediator's firm did some work for one of the parties sev-
eral years ago seems to me to be totally irrelevant and should never
lead to a mediator being conflicted out. Of course, if the lawyer medi-
ator has acted for one of the parties in the past, that might be relevant
and should be disclosed to the other parties. But it is only where the
mediator's independence and even-handedness could be perceived to
be challenged that conflicting out becomes relevant. Fortunately, for
me, as a non-lawyer, the situation rarely arises (although I was once
asked if it mattered that I had trained one of the lawyers who would be
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