ACIArb (Intro to ADR) study materials
ACIArb (Intro to ADR) study resources

ACIArb (Intro to ADR): Mediation: models, process and the mediator's role

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Mediation: models, process and the mediator's role

Mediation: models, process and the mediator's role

This domain tests the mediator's function and the architecture of a mediation: voluntary participation, self-determination, confidentiality, impartiality, and the difference between facilitative and evaluative approaches. It also tests how settlements are recorded and enforced.

Models and process

  • Facilitative mediation: the mediator manages process and communication, helping parties identify interests and generate options; the parties decide.
  • Evaluative mediation: the mediator, usually with consent, comments on strengths, weaknesses and likely outcomes; risk of shifting decision-making to the mediator.
  • Transformative mediation: focuses on empowerment and recognition in the parties' relationship, not only settlement.
  • Typical stages: convening and opening; information gathering; identifying issues and interests; agenda setting; caucuses; option generation; reality testing; bargaining; settlement and closing.
  • The mediator is not a judge or arbitrator and cannot impose an outcome. The mediator controls process; the parties control substance.

Worked example

Two companies dispute a delayed IT project. In joint session each gives a legalistic position. The mediator separates them into caucuses. The supplier reveals that cash flow, not liability, is the real pressure; the customer reveals that it needs the system running for a regulatory deadline. The mediator obtains permission to share only the delivery concern, not the cash-flow disclosure. Options then include staged payment tied to milestone delivery and a short service credit. The mediator reality-tests each option against the litigation alternative but does not tell them what a court would award. The settlement is recorded in a binding contract; if they had chosen arbitration, they could ask the tribunal to record it as a consent award.

Traps

  • Saying the mediator 'decides' or 'awards' a settlement.
  • Breaking caucus confidentiality without consent.
  • Assuming mediation is always confidential; exceptions can include threats, abuse, crime, or court order.
  • Confusing impartiality (no bias) with neutrality (no substantive involvement).
  • Letting an evaluative mediator pressure parties against self-determination.
  • Forgetting that a settlement agreement needs clear terms and authority to bind.