How Impartiality Works in Mediation
One of the main reasons why mediation breaks down is the occurrence when a single party or multiple parties observer the mediator as being biased. The same findings show that this is relevant no matter if the mediator is actually biased, or if only the included parties perceive him or her in that fashion.
To ensure that the standard of independence is maintained, a mediator should and will not give any opinion or advice. Instead, the mediation process is the possession of the parties that are being separated and not in the sphere of influence of the mediator. One of the key facts of the mediator is to ensure that all included parties arrive at an informed proposal/agreement with the previous knowledge all available options. Mediators, who are by professional lawyers, will provide a multitude of factual data and relevant laws, but they cannot disclose to the parties included in the process what is in their opinion the best option available. Instead, this should be decided by the parties involved in the mediation process.
Mediators that are Impartial
One of the mechanisms that allow the mediator to remain completely impartial is the process of encouraging the parties to seek appropriate and independent legal aid concerning anything they find relates to the process. The parties can after the same event include the legal advice in the process of making a decision during the mediation procedure. When financial issues need to be resolved during the mediation process that takes place after a separation, all included parties will be obliged to disclose all relevant financial dealings. This has to take place because the principle of negotiation (which all mediation basically is) is that it requires that all included parties have the same amount of knowledge and data available from the beginning. This way, the playing field can be leveled for the both parties before and during the actual process.
This is why, when there is a specific referral to the mediation process, the first step, once the mediation is accepted as an appropriate process by both parties is to attain financial disclosure. This is achieved using a document that is called a Financial Form, specifically its short version. The mediator is free to inquire about the disclosure to make completely sure that he or she understands this clause, but the mediator will not go into the process of investigating the disclosure documents that were provided. Doing this might prove to be counterproductive when it comes to the mediators perception in the eyes of the parties involved. Any investigation might be perceived as an infringement on the original agreement of mediator’s total independence and impartiality.
There are additional rules, all of which are designed to keep the mediator as impartial as he or she can be. Firstly, the mediator will not be or become in any shape or form involved with the correspondence with the relevant parties. This includes phone calls, letters, messages, emails and every other form of direct or indirect communication. The same rule was established because letters, messages, and phone calls are unbeknown st to the other party, which is not present to neater hear or see what is being talked about. This is a direct infringement of the basic rules of mediation.
Mediation is a process where both involved parties must be treated in an equal, direct way. Because of this rule, if a party decides to send a letter to the mediator, the same letter has to be returned to the sender, while the information attained, whatever that might be, also needs to be sent to the other party involved in the mediation process. In the case of this type of an event, the mediator needs to approach the possibility of emails being sent as the exact same scenario as the previous situation, because any correspondence outside of the mediation process could hamper the mediator’s independence.
Because of all this, of your client becomes involved in the process of family mediation , you should not advise the same client to get into contact with the mediator via email, to send the mediator any form of correspondence or to ask for a legal advice from the same mediator. At the same time, it is important that you support the client while the mediation process takes place by providing him or her with legal advice.
In some cases, you might be approached directly for the purpose of family mediation . If this happens, if the same client has been inquiring about the mediation process, you will not be able to provide them with any form of legal advice or represent them. In that case, they should consult some other film or solicitor for legal aid.