Role of the Mediator
The mediator holds no power of decision. The role is nonetheless exacting: to manage a negotiation between parties in dispute, to help them examine the issues and the options open to them, to hold their confidences, and to test whether an agreed resolution can be reached.
Assistance, not adjudication
A judge decides. A mediator assists. The courts describe the process accordingly: “Mediation takes the form of assisted without prejudice negotiation” (Brown v Rice & Patel [2007] EWHC 625 (Ch), [13]). The negotiation belongs to the parties. The mediator’s task is to make it more productive than it would be without assistance.
At Legatia Law the mediator acts independently and impartially. The mediator does not advise either party, does not determine the merits and does not impose an outcome. Our mediator does not mediate any matter in which she has advised or acted for a party.
Widening what can be agreed
Because the mediator does not decide, the mediator is not confined to the remedies a court may grant. The Court of Appeal made the point directly.
A mediator may be able to provide solutions which are beyond the powers of the court to provide.
Brooke LJ, Dunnett v Railtrack plc [2002] EWCA Civ 303, [14]; adopted in Halsey v Milton Keynes General NHS Trust [2004] EWCA Civ 576, [15]
Much of the mediator’s work lies there: identifying what each party needs, as distinct from what each has claimed, and testing whether terms exist that meet both.
Holding confidences
Parties speak candidly to a mediator only if what they say is protected. The mediator is bound by confidentiality and holds a right to enforce it that is independent of the parties.
Even if the parties agree that matters can be referred to outside the mediation, the mediator can enforce the confidentiality provision.
Farm Assist Ltd v Secretary of State for the Environment, Food and Rural Affairs (No 2) [2009] EWHC 1102 (TCC), [44(1)]
The protection yields where the interests of justice require evidence of what occurred. In Farm Assist the mediator was required to give evidence because the settlement was challenged for economic duress ([53]). The exception is narrow, and it confirms the rule.
Private sessions and joint sessions
A mediator works both with the parties together and with each alone. Private sessions allow a party to speak freely about risk, priorities and limits. A study of court-connected custody mediation found that greater use of them was associated with greater trust in the mediator. It also found that heavy reliance on them was associated with parties feeling more doubtful of reaching agreement with each other. The findings are correlational, and the setting differs from commercial work (Charkoudian, Walter & Eisenberg, 2018, Family Court Review 56(4), 544–571). The mediator’s judgement lies in the balance between the two.
The court’s view of the process
The courts regard mediation as a proper part of the resolution of civil disputes. The Court of Appeal has observed that mediation and other non-court processes “are, in general terms, cheaper and quicker than court-based solutions” (Churchill v Merthyr Tydfil County Borough Council [2023] EWCA Civ 1416, [59]). The same court held that parties may be ordered to engage in them ([58]).
The objection, and the answer
The strongest objection is that a mediator without power cannot break a deadlock. A party determined not to move will not be moved by someone who cannot compel it.
The objection mistakes the design for a defect. The absence of power is what allows parties to speak freely, to test proposals without commitment and to withdraw without any finding on the merits. Where no agreement is reached, the court remains available to decide. The mediator’s authority rests on the process and on the confidence of the parties, not on compulsion.
Conclusion
The mediator’s role is defined as much by what the mediator does not do as by what the mediator does. There is no advice, no judgment and no imposed outcome. There is a managed negotiation, a protected confidence and a persistent search for terms both parties can accept. That is the whole of the role, and it is enough.
This article is general commentary on the law of England and Wales at the date of publication. It is not advice on any particular matter.
The mediator holds no power of decision. The role is nonetheless exacting: to manage a negotiation between parties in dispute, to help them examine the issues and the options open to them, to hold their confidences, and to test whether an agreed resolution can be reached.
Assistance, not adjudication
A judge decides. A mediator assists. The courts describe the process accordingly: “Mediation takes the form of assisted without prejudice negotiation” (Brown v Rice & Patel [2007] EWHC 625 (Ch), [13]). The negotiation belongs to the parties. The mediator’s task is to make it more productive than it would be without assistance.
At Legatia Law the mediator acts independently and impartially. The mediator does not advise either party, does not determine the merits and does not impose an outcome. Our mediator does not mediate any matter in which she has advised or acted for a party.
Widening what can be agreed
Because the mediator does not decide, the mediator is not confined to the remedies a court may grant. The Court of Appeal made the point directly.
A mediator may be able to provide solutions which are beyond the powers of the court to provide.
Brooke LJ, Dunnett v Railtrack plc [2002] EWCA Civ 303, [14]; adopted in Halsey v Milton Keynes General NHS Trust [2004] EWCA Civ 576, [15]
Much of the mediator’s work lies there: identifying what each party needs, as distinct from what each has claimed, and testing whether terms exist that meet both.
Holding confidences
Parties speak candidly to a mediator only if what they say is protected. The mediator is bound by confidentiality and holds a right to enforce it that is independent of the parties.
Even if the parties agree that matters can be referred to outside the mediation, the mediator can enforce the confidentiality provision.
Farm Assist Ltd v Secretary of State for the Environment, Food and Rural Affairs (No 2) [2009] EWHC 1102 (TCC), [44(1)]
The protection yields where the interests of justice require evidence of what occurred. In Farm Assist the mediator was required to give evidence because the settlement was challenged for economic duress ([53]). The exception is narrow, and it confirms the rule.
Private sessions and joint sessions
A mediator works both with the parties together and with each alone. Private sessions allow a party to speak freely about risk, priorities and limits. A study of court-connected custody mediation found that greater use of them was associated with greater trust in the mediator. It also found that heavy reliance on them was associated with parties feeling more doubtful of reaching agreement with each other. The findings are correlational, and the setting differs from commercial work (Charkoudian, Walter & Eisenberg, 2018, Family Court Review 56(4), 544–571). The mediator’s judgement lies in the balance between the two.
The court’s view of the process
The courts regard mediation as a proper part of the resolution of civil disputes. The Court of Appeal has observed that mediation and other non-court processes “are, in general terms, cheaper and quicker than court-based solutions” (Churchill v Merthyr Tydfil County Borough Council [2023] EWCA Civ 1416, [59]). The same court held that parties may be ordered to engage in them ([58]).
The objection, and the answer
The strongest objection is that a mediator without power cannot break a deadlock. A party determined not to move will not be moved by someone who cannot compel it.
The objection mistakes the design for a defect. The absence of power is what allows parties to speak freely, to test proposals without commitment and to withdraw without any finding on the merits. Where no agreement is reached, the court remains available to decide. The mediator’s authority rests on the process and on the confidence of the parties, not on compulsion.
Conclusion
The mediator’s role is defined as much by what the mediator does not do as by what the mediator does. There is no advice, no judgment and no imposed outcome. There is a managed negotiation, a protected confidence and a persistent search for terms both parties can accept. That is the whole of the role, and it is enough.
This article is general commentary on the law of England and Wales at the date of publication. It is not advice on any particular matter.
