Mediators are neutrals. A mediator is not a fact-finder, and should not act as a judge to decide the merits of a case. The role of a mediator is to be a facilitator, to assist the parties in finding a mutually acceptable resolution of their dispute, not to dictate that resolution. At the start of a mediation, everyone usually agrees that this is the mediator’s role. Yet, part of the mediation process is an attempt by each party to convince the mediator that the other party’s position is wrong so that the mediator will put more pressure on the other party to alter its bargaining position. After a day of shuttling back and forth between the parties, a mediator often has a good sense of whether a settlement can be achieved, even if the parties have not found common ground.

The parties may appear to be dug in to their final positions, and neither will make another offer. It may appear that the mediation has failed, but it may only be that neither party is willing to make the next move to overcome the difference between their positions. In this context, the parties may request that the mediator propose a number that the parties may then only accept or reject.

Should the mediator comply with such a request?

Read more rom the National Law Review [here].