THE MEDIATORâ S ROLE

By Paul Bielaczyc
The mediator is selected by the parties to act as a neutral facilitator to assis
t and guide them towards a case resolution. The mediator works to direct each pa
rty to focus on the critical issues of the case so they can create options for s
ettlement. The mediator will not decide who is right or wrong in the dispute. An
d the mediator will not compel the parties or force them into a settlement agree
ment. The mediator is expected not to give advice to the parties as to what is t
he best choice of action in the dispute. Nor is the mediator expected to a give
case evaluation. The mediatorâ s role is to remain objective in viewing the facts o
f the case and facilitate dialogue.
A mediatorâ s technique and approach varies on a case by case basis. Generally, the
mediation will begin in a joint session with all parties present and the mediat
or to discuss the issues face-to-face. The mediatorâ s role is to help maintain the
parties focus on these issues during the entire course of the proceeding. The m
ediator will then hold private caucus sessions with each side talking in greater
detail about the respective positions of each party. The mediator is not expect
ed to disclose information obtained in private sessions. What is shared from pri
vate sessions is dependent on the rules of confidentially that are arranged befo
rehand by all sides.
The mediator will use the private caucus forum to exchange messages between the
parties, foster clarifications, carry questions and proposals to each side. The
mediator also uses the private caucuses to facilitate negotiations by transmitti
ng offers and counteroffers between the parties. Throughout this process, the me
diator must maintain confidentiality and neutrality, stay away from giving advic
e, and not force parties into settlement, while facilitating communications with
the parties.
Should the parties be successful in reaching an agreement, the mediator can work
with the parties to draft the terms and conditions of the settlement. In some c
ases the mediatorâ s role will continue after the scheduled mediation by providing
help to complete the settlement agreement. Throughout this entire process, the r
ules of mediation confidentiality will remain in force and effect preventing any
thing being prepared or said during the mediation to become admissible at any la
ter proceeding or hearing. Also, the mediator cannot be called to testify about
what was said at the time of the mediation.
Mediators do not have a stake in the outcome of the mediation. As a result, part
ies can be assured that when they select a mediator, impartiality will be presen
t. Mediator selection can be accomplished by viewing public or private panels. A
ll Superior Courts in the Tri-county area have public panels of mediators. These
mediators can be hired to work pro bono or for a fee. Each panelist often has s
pecialty areas of practice. Resumes may be requested to view a mediatorâ s backgrou
nd and specialty area along with their own fee schedule.
Mediators are required to be certified before they will be considered for placem
ent on public or private panels. The certification process requires a specified
amount of attendance at specialized training locations where methods of mediatio
n and negotiation are presented by skilled instructors. There are no requirement
s for continuing education of mediators; however, many mediators often continue
to refine and develop their skills by attending ongoing training sessions and se
minars that are offered to help the mediator become a more accomplished practiti
oner. Mediators are also available for hire to instruct on their own detailed me
thods of mediation that can be used in the workplace.
Once a mediator is selected, a venue is determined either by the parties or the
mediator may have locations to conduct the mediation. Again, neutrality is the g
oal, so it is in the best interests of the parties to find an impartial location
to conduct the mediation. Courthouse conference rooms often can be used to assu
re an impartial setting. Other choices include public administration conference
rooms or private facility conference rooms. The mediator may require parties to
sign engagement documents to commit their participation to the mediation process
.
The mediator fee is determined by the selected facilitator. If the case is assig
ned to mediation by the court, local court rules may determine compensation for
the mediator. If the mediation is by private assignment, the parties will genera
lly share equally in paying the mediator fee unless different arrangements are m
ade. Mediators may require administrative fees, expenses for facilities, deposit
s to secure calendaring, travel expenses and may impose cancellation fees. These
costs and expenses are at the discretion of each individual mediator.
More detailed rules regarding the role of the mediator and the mediation process
can be obtained by viewing selected provision of the California Evidence Code,
the American Arbitration Association, the American Bar Association, the Society
of Professionals in Dispute Resolution and California Dispute Resolution Council
.
____________________________________________________________
Paul Bielaczyc is an Attorney, an Arbitrator and a Mediator focusing his ADR eff
orts on all areas of general civil litigation. He is an approved panelist for th
e Santa Barbara, San Luis Obispo and Ventura Superior Court Mediation programs.
You may call Tri-County Mediation at (805) 565-8725 for more information or to v
iew the profile of Mr. Bielaczyc, go on-line to http://www.tricomediate.com or b
y going to the Santa Barbara County Superior Court CADRe website at http://www.s
bcadre.org/bielaczyc.htm.