Role of the Mediator

Unlike judges who primarily perform the same function in any trial, not so with mediators. Mediators play different roles depending on their training and experience. The most common roles are messenger, hearing officer, evaluator, devil’s advocate, facilitator and peacemaker.

1. Messenger. The dawn of mediation was over 2000 years ago during the time of Confucius. Mediators played the role of messenger, shuttling back and forth between parties conveying demand and offers. Their role was limited, and other than act as messengers they were not permitted to get involved in the settlement phase of the case, even if asked, that was left entirely to the parties.

Those mediators who act as messengers today are few because the process has modest success. Most parties want the mediator to help them solve their problems and introduce creative ways to bring parties together. Retired judges, who decline to take mediation training, more than any other group limit their participation in a mediation to being messengers. It requires no training nor creative thinking.

2. Hearing Officer. The person who mediates as a hearing officer gets actively involved in the process. Their role is to hold a hearing, listen to the evidence and arguments of counsel, and then make a nonbinding award. The hearing itself can be evidentiary or summary in nature with counsel explaining their positions. In making an award, the hearing officer is evaluative and informs the parties what he or she believes the case is worth before the trier of fact, judge or jury. Parties can accept or reject the hearing officer’s evaluation; however, if a party rejects it and goes to trial, he must, in most jurisdictions, improve the award by a certain percentage, normally 10 percent, or pay the attorney fees and costs of the other side.

Again, other than giving his or her evaluation of the case, the hearing officer does not get involved in the solution phase of the case. Like the messenger, this is left to the parties.

3. Evaluator. The mediator who is asked to be evaluative garners the evidence and law and provides the parties with his evaluation of the case. He can use any of several formats. Like the hearing officer, he can hold a hearing or use a conference or caucus format.

Generally, mediators who are asked to be evaluative have expertise in the area of law governing the case. That is, a lawyer with an engineering background might be asked to be evaluative in a patent case, or an antitrust lawyer might be evaluative in a price-fixing case.

There are limitations to what the evaluator does. He does not consider noneconomic factors that might influence settlement, nor does he weigh emotional factors which might be important to the parties.

4. Devil’s Advocate. Some mediators play devil’s advocate in a mediation. They argue the other side’s position which has the effect of putting a party on the defensive. Not infrequently, this approach can lead to a party and mediator arguing, which undermines the rapport and trust the mediator seeks to establish.

Mediators without training or new to the profession utilize the devil’s advocate approach because they are already trained in advocacy and it takes little effort to implement. The biggest problem with this approach is that the parties often come out of the mediation feeling abused as much as if they had gone through a trial. Also, because the mediator and party are in essence adversaries, there is little opportunity to consider noneconomic and emotional factors in the settlement.

5. Facilitator. At the high end of the mediator scale is the facilitator. He or she actively participates in all phases of the mediation. He looks for solutions which are creative and he seeks to satisfy the needs and interests of the parties. His primary goal is to build rapport and trust with the parties and encourage them to find common ground. He looks to include noneconomic solutions and meet the emotional needs of the parties. Good facilitators will enjoy an 80 percent to 90 percent success rate.

6. Peacemaker. The highest calling in the legal profession is the mediator who is facilitator but also a peacemaker. He seeks not only resolution but conciliation, peace and healing. He is placed on the pedestal with the other healing ministries and is honored above all others in the legal profession.

Abraham Lincoln said in 1850: “Persuade your neighbors to compromise whenever you can . . . . As peacemaker, the lawyer has a superior opportunity of being a good man.”

The peacemaker has a philosophical origin going back to the time of Confucius. It is based on Confucian philosophy that resort to the courts is the “second best” way to resolve differences, the “first best and socially proper way, used by the superior man is by the method of mediation, following the ethics of the middle way.” This consisted of bringing parties to a settlement both can accept through the good offices of a mediator. [1] In the Confucian view,

A lawsuit symbolized disruption of the natural harmony that was thought to exist in human affairs. Law was backed by coercion, and therefore tainted in the eyes of the Confucianists. Their view was that optimum resolution of most disputes was to be achieved not by the exercise of sovereign force but by moral persuasion. Moreover, litigation led to litigiousness and shameless concern for one’s own interests to the detriment of the interests of society. [2]

[1] Northrope, The Mediation Approved Theory of Law in American Legal Realism, 44 VA. L. REV. 347, 349 (1958)

[2] Riskin, Mediation and Lawyers, 43 OHIO ST. J. 29, 34 (1982)