CAN A MEDIATOR DECIDE A CASE?

Written by Graham Perry

Graham Perry M.A. Cantab FCIArb Experienced Arbitration Lawyer | China & Chinese Business Affairs | Public Speaker/Lecturer

3 April 2021

COMMENT OF THE DAY #47

MEDIATION

At the end of a long day + lengthy negotiations, the parties are unable to achieve a settlement. There is one sticking point + they ask you to decide the issue for them. – What do you do?

Interesting. You are a mediator. Your job is to bring the parties to an agreed conclusion. They have agreed on a number of points but one point remains outstanding. There is no agreement on it and the mediation is about to fail.

You do not offer to settle it because that is not your job – not your role – not your function. But what if the two parties agree to make a joint approach to you to decide the undecided matter. Can you accept? Can you refuse to accept?

Everything about your work is about getting a consensus – getting an agreement – enabling the parties to settle.

Their request to you is the complete opposite. No consensus. No agreement. Instead, they want you to look at the rights and wrongs of just one matter. If you decide they will abide. Lots of points arise.

I will be checking my Inbox + Junkmail + LinkedIn for your comments.

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