The Mediator Who Knows the Respondent's Director
Tomas is accredited and mediates a commercial lease dispute between a landlord and a tenant company. Two days before the joint session, he realises that the tenant's finance director, Ms Okafor, sat on the board of a community organisation Tomas chaired until eight months ago. They attended roughly ten board meetings together and exchanged occasional emails, none about this dispute. Tomas has no financial interest in either party. The lease dispute turns on interpretation of a rent review clause; Ms Okafor is expected to attend but is not the tenant's primary spokesperson. Tomas discloses the connection to both parties. The landlord's solicitor objects and asks Tomas to stand down. The tenant says it has no concern.
1. Analyse whether Tomas can continue. Address the nature of the relationship, the timing, and the parties' divergent positions.
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Nature of the relationship: A past board colleagueship is a prior professional association, not a current financial or personal interest. It is disclosable, and Tomas correctly disclosed it. Whether it is disqualifying depends on whether a fair-minded observer would reasonably apprehend bias.
Timing and content: The role ended eight months ago; the emails were unrelated to the dispute; Ms Okafor is not the lead spokesperson; the issue is contractual interpretation rather than a matter where personal regard would predictably tilt judgment. These factors point against a reasonable apprehension of bias.
Divergent positions: One party objects, one consents. Consent from the tenant does not cure a genuine conflict, because the duty is to both parties and to the integrity of the process. But an objection is not automatically decisive either; a party cannot veto a mediator by mere assertion.
Conclusion: Tomas may continue if he is satisfied the relationship is remote and he documents the disclosure, the parties' responses, and his reasoning. If he has any doubt about his own impartiality, he should withdraw, because perceived partiality is assessed objectively but felt partiality is a fact only he knows.
2. The landlord's solicitor escalates, saying that if Tomas continues she will advise her client to withdraw from the process. Set out Tomas's options and the professional considerations for each.
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Option 1 - Continue, with safeguards. Document the disclosure and reasoning; offer to reconvene with a co-mediator; propose that Ms Okafor's role be limited. Risk: the landlord may withdraw, and if the mediation later fails the process may be characterised as tainted. Benefit: avoids rewarding a tactical objection and preserves the parties' investment.
Option 2 - Stand down. Preserves the appearance of impartiality and the landlord's confidence. Risk: the tenant loses its chosen mediator and may perceive the objection as having succeeded tactically; delay and cost to both parties.
Option 3 - Refer the decision upward. Ask the accrediting body or the mediator's appointing organisation to rule. Slower, but gives an independent determination and protects Tomas either way.
Professional considerations: Tomas must not allow either party to pressure him into a decision that compromises neutrality. He should avoid advocating for his own continuation in a way that aligns him with the tenant against the landlord. Whichever route he takes, he should record the disclosure and the reasons contemporaneously, and confirm the outcome in writing to both parties.