5 - Mediators and Their Appointment

Summary

Issues of education, training, accreditation and standards are increasingly important, and this is reflected in the considerable efforts that have been taken to develop quality, standards and accountability in mediation to enhance process safeguards for commercial parties and professionalise the service. While mediator standards leave some issues unresolved, experience from practice and mediator training should help to clarify statements in codes of conduct on issues of neutrality, impartiality, confidentiality and the use of mediator power. Greater precision should also come from some standards being judicially defined. There are a number of factors for mediators to consider in avoiding liability claims. A carefully drafted mediator liability exclusion clause in an agreement to mediate is important. As many lawyers mediate, it is important that there is a clear distinction between the role of a lawyer and the role of a mediator. Where a judge mediates, private caucus mediation sessions should be avoided and the mediation should be referred to a judge other than the trial judge or to a non-judicial court official to address procedural fairness and bias issues.