POST GRADUATE LEGAL STUDIES &

LEGAL AID

ALTERNATIVE DISPUTE RESOLUTION

(ADR)
MODULE 2: MEDIATION
 Today’s Outline

• Introduction
• What is Mediation?
• Models of mediation
• Mediation in Uganda
• Mediation processes
• Role of a Lawyer in mediation
• Duties of the mediator
• Powers of a mediator
• Global trends in mediation
• Ethical questions
 Introduction: Difference between
Settlement and Resolution
Dispute Settlement Dispute Resolution

Arbitration Mediation
Adjudication Conciliation
Expert Determination Negotiation

• Settlement: aimed at ending dispute quickly and amicably as possible.

Focuses on money to be paid and tends to have haggling and posturing.
Root cause of conflict not a focus area.

• Resolution: seeks to identify the causal factors behind the conflict.

Aims at unearthing the cause of the conflict.
 Mediation: what is it? (ctd)

‘A method of non-binding dispute resolution involving a neutral

third party who tries to help the disputing parties reach a mutually
agreeable solution’
Black's Law Dictionary (8th ed. 2004) , Page 3113

“mediation” means the process by which a neutral third person

facilitates communication between parties to a dispute and assists
them in reaching a mutually agreed resolution of the dispute
Section 3, The Judicature (Mediation) Rules, 2013
 Mediation: what is it? (ctd)
Mediation is generally accepted to be a structured process
comprising one or more sessions in which one or more mediators—
without adjudicating a dispute or any aspect of it and with the goal
of enabling the parties to take voluntary responsibility for resolving
their dispute—assist the parties to do any or all of the following:

• Identify the issues in dispute.

• Explore and generate options.
• Communicate with one another.
• Reach an agreement regarding the resolution of the whole or part
of the dispute

Mediation Series: Making Mediation Law, 18

 Mediation: what is it? (ctd)

§ The parties have ultimate control of the decision to settle and the terms
of resolution.

§ The mediator uses a variety of skills and techniques to help the parties
reach a settlement but has no power to make a decision. The parties
remain the decision makers.

§ Mediation is generally referred to as an interest-based process – in

contrast to a rights-based process – because it is designed to help the
parties clarify any underlying motivations or interests.
 Mediation: what is it? (ctd)

§ It is a confidential and informal way to resolve a dispute with the help

of a neutral third party (mediator) who from the outset, encourages each
party to attempt to understand and evaluate the interests of the other
party.

§ The mediator works with both (all) parties to help them reach a
mutually agreeable solution to their differences.

§ The mediator’s role is that he/she is the central figure guiding parties in
reaching agreement on a mutually acceptable solution.
§ Appropriately so, as the word “mediation” itself, stems from Latin and
the meaning denotes “in the middle.”
 Mediation: what is it? (Ctd)
• For the most part, the mediator has no authority to impose an
outcome on the parties if they fail to reach agreement, and both
sides are free to walk away from the process at any time.

• The mediation technique introduced is different from the older

paradigm in that the parties agree to undergo a specific procedure:
a) improving their consciousness of what the nuclear points in
dispute are;
b) together generating proposals for possible solutions;
c) select proposals for a solution via negotiation and resting on
win‐win and dialogue principals; and
d) execute these proposals to completion
 Mediation

is

assisted negotiation
 Free-standing (private) mediation
What is Free-Standing (private) mediation?
• Mediation centers or programs organized without any court
connection or component. This is usually run by a Chamber of
Commerce, private entities/individuals, professional bodies,
NGOs, Trade Associations, international organization, or for-
profit organizations.

• Agreements arising out of private mediations are enforced like

contracts.
• The main advantages:
• Flexibility in setting the timetable for resolving the dispute.
• The case does not have to be registered with the court.
• The parties do not have to meet with the judge.
• There are no court fees.
 Court-annexed mediation

• This is mediation program or practices authorized and used

within the court system and controlled by the court.

• Cases are referred to mediation by courts only.

• Often judges or other court officials serve as mediators

(Registrars, magistrates, judges etc)

• An agreement arising out of court-annexed program is

enforceable as a court order (unless otherwise decided by the
parties)- recorded as Consent Judgment.
 Court-annexed mediation

• In the court-annexed mediation model, the court refers parties

to mediation.

• Usually, the mediation takes place in a court building and is

conducted by court-based mediation practitioners.

• The mediators are drawn from the judiciary, court personnel,

panels of mediators attached to the court, or a community
mediation organization.

Mediation Series: Making Mediation Law, 8 and 9

 Court-related mediation

Represents a private form of court-related mediation, in which the

court outsources mediation services. The mediators are typically
not employed by the court and are members of a panel of court-
approved mediation service providers who set their own fees that
the disputants pay.

Mediation Series: Making Mediation Law, 9

Principles of Mediation
 1. Self-Determination
• Mediation respects, values and encourages the participants’
ability to make their own decisions regarding what process
to use, and whether and on what terms, to resolve their
disputes.

• Self-determination is the fundamental principle of

mediation that best distinguishes it from the litigation
system.

• Participants should be free to choose their own dispute

resolution process and are encouraged to make their own
decisions on all issues.
 2. informed Consent
• Informed consent is an important part of the participants’ right to self-
determination.

• Informed consent is supported when mediators disclose or offer to disclose

the information reasonably necessary for informed decisions on whether to
use the mediator and whether to participate in the specific mediation process.

• Mediators are encouraged to explain the mediation process and the roles of
the mediator, the participants, their representatives, and others in attendance.

• Mediators are encouraged to make ongoing, good faith efforts to assess the
participants’ ability to make voluntary choices consistent with their rights of
self-determination, and may discontinue the mediation under circumstances
manifesting a participant’s inability to give informed consent.
 3. Confidentiality & privilege

Insider–outsider confidentiality

A general duty of confidentiality in the face of outside parties.

This classification means that those parties involved in a
mediation (insiders) cannot make prohibited disclosures to people
outside the mediation (outsiders).

Mediation Series: Making Mediation Law, 10

 Confidentiality & Privilege
Insider–insider confidentiality

§ Regulates the flow of information in mediation, especially in relation

to private sessions—also known as caucuses—between the mediator
and a party.

§ As a matter of practice, mediators manage insider–insider

confidentiality in one of two ways: the open communication
approach or the in-confidence approach. In the former, information
passed to mediators in private sessions is not treated as confidential
unless specifically requested by the relevant party.

Mediation Series: Making Mediation Law, 10

 Confidentiality
Insider–court confidentiality

• Involves the rights and obligations associated with protecting

these mediation communications from being legally discovered
or admitted in evidence in court and arbitral proceedings.

• It is categorized as a specific form of insider–outsider

confidentiality in which the court is the outsider. Technically,
however, this area is not about confidentiality but rather about
admissibility of evidence.
 Confidentiality & privilege

• The mediator will conduct the mediation on a confidential basis,

and will not voluntarily disclose information obtained through the
mediation process except to the extent that such matter is already
public or with the consent of the parties

• An injunction can be obtained, in certain circumstances, to

restrain breach of this obligation (Venture Investment Placement
Ltd v Hall [2005] EWHC 1227 (Ch)).

• In Aird & Aird v Prime Meridian [2006] EWCA Civ 1866, the
court accepted that a confidentiality clause reinforces the without
prejudice rule.
 4. Impartiality
• The duty of impartiality of the mediator is inherent in the
mediation process.

• Mediators should make good faith efforts to avoid conflicts

of interest in recommending the services of other
professionals.

• When a mediator is appointed to mediate, rather than

selected by the parties, the appointing agency or authority
should make reasonable efforts to ensure the mediator
demonstrates impartial regard.
 Impartiality

§ A mediator shall decline a mediation if the mediator

cannot conduct it in an impartial manner. Impartiality
means freedom from favoritism, bias or prejudice.

§ A mediator shall conduct a mediation in an impartial

manner and avoid conduct that gives the
appearance of partiality.
 Features of Mediation
§ Mediation is generally private, voluntary, and informal

§ The focus is on problem-solving rather than on determining who is

right and who is wrong

§ It is a non-adversarial process with the mediator committed to

neutrality and impartiality

§ Mediator must avoid pre-determined point of view

§ Outcome of the process is in the hands of the disputants

§ Empowering because parties have an opportunity to come up with

their own solutions and they have an element of control
 Features of Mediation
§ Primary objective is a win-win situation

§ Preservation of relationships

§ Mediators are advocates for the process of mediation rather than

advocates for either party

§ Containment of escalation

§ Facilitates communication

§ Time saving

§ Creative options

§ Reduced costs
 Features of Mediation
§ It is not an adjudicative process and therefore not adversarial

§ It involves the parties negotiating a settlement of the dispute

§ It aims at focusing on the real interests of the parties and generating

options for settlement.

§ A form of third party- assisted, structured negotiation founded on

“without prejudice basis” principle.

G.Kiryabwire, Alternative Dispute Resolution in Uganda; The Ugandan Court

Experience, Law Africa, 2021 pp 90- 109.
 Mediation – when suitable
• Think a mediator can organize a respectful discussion about the
issues
• Feel safe in the presence of each other
• Want a conflict resolution intervener to assist the discussion
• Want to determine the outcome yourselves
• Want to maintain an ongoing relationship
• Want to keep discussions confidential
• Want to find creative ways to resolve the dispute (a win–win
outcome)
Mediation Series: Mediation Essentials, Chapter One, 8
 Benefits of Mediation
Mediation is a good tool to, at least partly, achieve the following
objectives:

• Reduce court backlogs.

• Reduce time necessary for contract enforcement.
• Reduce costs of dispute resolution (e.g. by limiting court and
legal fees).
• Increase number of in-court settlements (facilitated by judges or
mediators).
• Reduce formality and complexity of the existing processes.
• Reach geographically dispersed population.
• Increase satisfaction with dispute resolution.
 Benefits of Mediation
• Effectively handle complex multiparty disputes.
• Effectively handle disputes where sophisticated expertise is needed.
• Increase access of disadvantaged groups.
• Support case management and create models for further court
reform.
• Reduce high level of tension in business communities and promote
long lasting relationship between business partners.
• Modify the “culture of dispute resolution” based on adversarial
proceedings and the assumption of hostile mindset.
• Respond to the concerns of equity and relationship.
 Models of mediation

1. Facilitative mediation
§ Any decision making is left to those involved. The mediator has no
decision-making authority

§ Based on the notion that the parties involved have the best
understanding of what they need for themselves and from each
other.

§ Helps parties in a conflict make their own decisions in the belief

that such decision will have the best fit and therefore be highly
sustainable

§ The mediator offers a structured process for the parties to make

best use of in seeking mutually satisfactory solutions
 Facilitative mediation(ctd)
• The mediator does not give an opinion on the likely outcome at trial
or legal issues, but only seeks to help the parties find solutions to
the underlying interests or problems giving rise to the litigation.

• The mediator’s expertise in the process of mediation, rather than in

the subject matter of the litigation, is viewed as paramount.

• Some mediation professionals view facilitative mediation as the

preferred approach because the mediator preserves the principle of
complete impartiality by not giving an assessment or prediction of
the outcome of the case at trial.
The parties ask the mediator for her legal
opinion on the issues raised by the case.

• How should the mediator respond?

 2. Evaluative mediation
§ Evaluative mediators are usually legal practitioners, often with an
expertise in a particular area of law relevant to the conflict.

§ Evaluators provide the parties with an evaluation of the strengths

and weaknesses of their case with respect to their legal positions

§ The mediator’s opinion including, for example, a legal and/or

factual evaluation of the case, and sometimes an assessment of
potential legal outcomes is used as a settlement tool. This
approach generally requires mediators who are experts in the
subject matter of the case.

§ If asked, they may provide an anticipated outcome of the dispute.

Direction towards settlement options may also be on offer
 Evaluative mediation

§ There is a strong drive towards equitable settlement as an

efficient and economic alternative to legal measures.

§ Most evaluative mediators also consider the interests of the

parties in attempting to facilitate a settlement.
§ Many mediators blend facilitation and evaluation, applying
each approach in varying degrees at different times during the
mediation process, depending on the needs of a given case.
 Evaluative mediation
What constitutes evaluative behaviour?

• Predictive behaviour. This involves giving a view on what will happen in

court or other forums. In this regard, the mediator gives an assessment of
the strengths and weaknesses of the case and makes an opinion on the
accuracy of each party’s views. Much of the discussion on evaluative
mediation has focused on whether it Is the role of the mediator to give his
or her view on the merits of the parties’ dispute.

• Directive behaviour. “Evaluative” mediation has also been understood to

include the mediator directing the parties towards certain outcomes or
solutions. Making a prediction on court outcome sometimes results in the
mediator being directive by urging the parties to arrive at a solution that is
close to his or her prediction.
 Evaluative mediation
The strong reaction against “evaluative mediation”

• Mediator neutrality. Giving an assessment of the merits of the parties’ case

has an impact on mediator impartiality or neutrality.

• Once the mediator gives the impression that he or she is favouring one party
over the other, the parties’ trust in the mediator is affected, and it may be
much more challenging for the mediator to work with both parties in arriving
at a joint resolution to their dispute.

• Parties’ self-determination or autonomy. Mediation’s popularity can be

attributed to how it focuses on party empowerment. Unlike many other modes
of ADR, the allure of mediation lies in how the parties have the opportunity to
exercise self-determination.

• The fundamental ethos underlying mediation appears to be undermined by

evaluative activities that directly impinge on the parties’ autonomy.
 Evaluative mediation

You Have a Lousy Case

 3. Transformative mediation
§ It is a much less structured approach that focuses on two key
interpersonal processes, namely, empowerment and
recognition

§ A transformative mediator aims to empower the parties

involved to make their own decisions and take their own
actions.

§ They also work to foster and develop recognition for and

between the parties.

§ The parties are very much in charge of both the content

(the substantive issues) and the process, and the mediator
works to support both as their conflict unfolds and the process
and relationship builds
 Transformative mediation
• By supporting recognition, the mediator seeks to "strengthen
people's capacity to see and consider the perspectives of others.”

• The mediator describes her/his role and objectives in terms of

empowerment and recognition.

• Settlement is presented as one possible outcome of the mediation

process.
• However, reaching a settlement is not presented as the most
important goal of mediation. A successful session is described as
one which produces improved understanding or more clarity.
 4. Narrative Mediation

§ It focuses less on negotiation and more on how the parties

(people) make sense of the world. By telling stories of events
and by giving meaning to these events, people construct their own
reality.

§ People in conflict will tell conflict stories that help them make
sense of the situation, the other person and themselves.

§ Narrative mediators believe that for every conflict story there is

an alternative story that can make co-operation and trust
more available. Narrative mediators help parties rewrite new and
more constructive stories.

§ This form of mediation thus descends to an individualistic level

§ FACILITATIVE mediators do NOT suggest solutions

§ EVALUATIVE mediators evaluate & suggest solutions

§ TRANSFORMATIVE mediators are not concerned

about solutions. They want to “empower” and
“transform” the parties.
 Mediation processes

Does mediation exist in a vacuum?

 Mediation processes
§ Quite the contrary, it operates against a backdrop of dispute
management culture, institutional rules, and varying regulations

§ Thus, the manner in which mediation is absorbed and applied is

dependant on the context

§ When you think of mediation, consider the broader framework

within which ADR was developed

§ According to Cappeletti, it is part of the third wave in the world-

wide access to justice movement
Capelletti M “Alternative Dispute Resolution Processes within the
Framework of the World-Wide Access-to Justice Movement”
 Mediation processes
vCourt annexed mediation demonstrates an interaction between ADR and
the legal system

vADR as you are aware, is beneficial in that its processes are expedient
and cost effective amongst other factors.

vAdditionally, mediation has similar benefits as with ADR which arise,

generally, in that the parties save significant cost and time (amongst other
benefits) thereby enabling them to focus on their main interests as
opposed to conflicts

vThis gives them the control over the outcomes of their conflicts that they
would not otherwise have had

vFrom this, it is clear that mediation has a role in increasing access to,
participation in, and to a certain degree, satisfaction in the way that legal
disputes are resolved
 Mediation Usage

vMediation is used in a variety of contexts including:

I. Commercial contracts
II. Civil and land disputes
III. Workplace grievances
IV. Family relationships
V. Community disputes

vCan you think of other settings where we can find

mediation
 Mediation in Uganda

§ Formal ADR practices and the relevant legal framework can

be traced back to the 90s

§ The three ADR mechanisms that are practised and have a

legal framework governing them include:
1. Conciliation (ACA)
2. Mediation (Judicature (Mediation) Rules, CPR)
3. Arbitration (ACA)
 Mediation in Uganda
vIn 1999 review of the Uganda Commercial Justice Sector Study (UCJSS)
Report recommended that the Ugandan Judiciary “expand the use of ADR
by mandating its use…in commercial cases”.

vIn response to the report, the Constitutional Commercial Division

(Mediation Pilot Project Rules) Practice Direction (Legal Notice 71 of
2003 was developed.

vFor the first time, court-annexed mediation was allowed to become part of
the case management strategy at commercial court.
vMediations under the pilot scheme were referred to CADER to be
managed under its Rules.

vIn 2004, a Survey indicated that 80% of cases filed in commercial court
were settled leading to consent judgments.
 Mediation in Uganda

vAfter the Pilot project, mandatory mediation was introduced in

commercial Court under the Judicature (Commercial Court
Division) (Mediation) Rules, 2007 SI No. 55/2007.

v The 2003, 2007 and 2013 Mediation Rules all have the same
characteristics. Rules define mediation as:
“ Mediation means the process by which. A thirdparty person
facilitates communication between parties to a dispute and
assists them in reaching a mutually agreed resolution of the
dispute”
• Rule 3, The Judicature (Mediation) Rules, 2013

• This means that most forms of mediation such as facilitative and

evaluative mediation can be conducted under these Rules
 Mediation in Uganda

vIn December 2017, a review committee of Judiciary noted that the

60-days mandatory period under mediation rules to attempt
mediation was being used by some lawyers as a mere formality
before litigation.

vIt was recommended that mediation or any ADR mechanism should

be court directed/referred under Order 12 rule 1 of the Civil
Procedure Rules during the pre-trial/scheduling conference.

vThis was to be done after taking out Summons for Directions at the
close of pleadings adopted under the Civil Procedure (Amendment)
Rules, SI No. 33 of 2019
 Mediation in Uganda
vMediation in Uganda despite being an ADR mechanism,
cannot be held in some instances unless the process is
commenced in a court of competent jurisdiction

vThus, it is said that mediation is a court annexed process.

This entails that the courts which have jurisdiction to
refer cases to mediation are: the High Court, Subordinate
Court and the Industrial Court

vThe Employment Act and the Labour Dispute

(Arbitration & Settlement) Act, 2006 is emphatic on
mediation of labour disputes
 Mediation procedure in the High
Court
vEvery action may, upon being set down for trial, be referred by
the trial judge for mediation

vThe court keeps list of people that have been trained as mediators

vWhen a matter has been referred to mediation, the mediator

appointed shall collect the record from the court

vUpon collection, the mediator contacts parties and fixes a date of

the meeting

vThe parties, once summoned, can appear before him with or

without their representatives
 Mediation procedure in the High
Court
vMediation being a confidential process, the mediator should not
keep any record used during the process

vIn the event that mediation fails, the mediator should return the
record to the court

vWhere a settlement has been reached, it shall be registered in

court and shall have the same effect as a judgment

vThere is no appeal against a mediated settlement

 mediation in Uganda

vIs there a possible reason for why mediation is propounded in

Uganda?

vHow about its relevance in Uganda?

vSurely, it must have some importance especially bearing in mind that

there are statutory instruments advocating for its use in certain
instances?

vConsider your argument from this perspective

 Global trends in mediation

vAs far as legal integration and utility, mediation is the fastest

growing form of ADR globally

vUnlike most other types of ADR mechanisms, mediation caters

for a plethora of developments that range from consumer to
environmental interests

vWhy is it then, that, common law jurisdictions are more

inclined towards applying mediation as opposed to civil law
jurisdictions?
 Global trends in mediation

§ UNICITRAL Conciliation Rules, Adopted at UN General Assembly

23 July 1980.

§ EU Mediation Directive on Civil and Commercial Aspects of

Mediation; Directive 2008/52/EC.

§ The UN Convention on the International Settlement Agreements

Resulting from Mediation GA Res.73/199 adopted at UN General
Assembly on 20 December 2018 (Singapore Convention)

§ The UNICITRAL on International Commercial Mediation amends

the Model Law on International Commercial Conciliation 2002
 Your thoughts

• Do you think that, considering the harsh socio-economic

reality in Uganda, mediation is more relevant than you might
have initially thought?

• Do you have any alternate arguments? If so, what are they and
what is the basis of your argument?
Procedure For Mediation
 Practical steps in the mediation
process.

§ Step 1- introduction or intakes

§ Step 2- Telling the story or information gathering.
§ Step 3- Identifying facts and issues.
§ Step 4-Identifying alternative solutions.
§ Step 5- Revising and discussing solutions.
§ Step 6-Reaching an agreement.
§ Step 7-Revising and drafting the final agreement.
 The role of a lawyer in mediation
Pre- Mediation
• Preparation is always important for good results.

• Explain to the Client the mediation and the process that follows.

• Assist the client to formulate the key points of the mediation.

• Assist the Client and discuss the issues related to the dispute, the range of
possible outcomes, and the issues in which the client may have an edge as
compared to the other party.

• Ensure that all the relevant documents are available and prepared prior to
mediation.
• The clients are mostly clueless if advocates are not present to guide them
through the whole process.
 The role of a lawyer in mediation
Pre- Mediation
What do you do to prepare for a mediation?
• (BATNA, Info & Game Plan Pre-Mediation Conferences)
• BATNA- Best Alternative to a Negotiated Agreement
• The term BATNA was originally used by Roger Fisher and William
Ury in their 1981 book entitled “Getting to Yes: Negotiating
Without Giving In.”
• Develop factual information
• Develop legal analysis
• Coordinate with client
• Combine risk analysis with transaction cost analysis to get
BATNA.
• Coordinate internally within Company hierarchy to have
appropriate authority.
 The role of a lawyer in mediation
Pre- Mediation

What do you do to prepare for a mediation?

§ Set 3 possible deal numbers in advance:

§ (1) rationally supported best outcome;
§ (2) reasonable outcome,
§ (3) outcome that is of equal value to going forward with the case
(BATNA) – BUT stay open to reevaluate – either way – in
mediation.Identify and try to resolve coverage issues in advance of
mediation.

§ Be sure client prepares the Mediator with good pre-mediation statement

and supporting exhibits/information.

§ coordinate pre-mediation statement with client, if it does not cause

undue delay.
 The role of a lawyer in mediation
During Mediation-
• The advocate plays the role of a guide.
• He guides and advises his client as to how to present the issues during
the procedure.
• In some cases, the advocates may also represent his clients and
negotiate on their behalf.
• During mediation, various proposals are made by the parties. The
advocate guides the client in understanding the legal aspects of such
proposals along with the risks and gains associated with it.
• They help formulate proposals beneficial for his client.
• The advocates can come up with creative solutions in order to solve
the disputes.
• They also save their client from entering into a pressured settlement.
 The role of a lawyer in
mediation
Post- Mediation
• There are two outcomes to the mediation procedure. If the
process is successful, then the advocate prepares the agreement,
that the clients have settled upon.

• If the parties have settled on an agreement, then the advocate

ensures that the consent decree is executed.

• If the mediation is not successful, then the next best remedy for
the client to approach the court. An advocate is required for the
purpose of litigation.

• Lawyers and clients should act, at all times, in good faith to

attempt to achieve settlement of the dispute.
Duties of the mediator
 Duties of the mediator

1. The mediator shall explain his role and define the process of
mediation;
2. To summon the parties and make an effort to schedule the
conference at a time that is convenient with all participants;
3. Maintain confidentiality;
4. The mediator has a duty to be impartial and to advise all
participants of any circumstances bearing on possible bias,
prejudice or partiality;
5. Reporting the results of mediation to the Court (for court annexed
mediation);
 Duties of the mediator
6. To help parties resolve their dispute. Brooke LJ in Dunnett v
Railtrack Plc (in railway administration) stated:

“Skilled mediators are now able to achieve results satisfactory to both parties in
many cases which are quite beyond the power of lawyers and courts to achieve.
This court has knowledge of cases where intense feelings have arisen, for
instance in relation to clinical negligence claims. But when the parties are
brought together on neutral soil with a skilled mediator to help them resolve
their differences, it may very well be that the mediator is able to achieve a result
by which the parties shake hands at the end and feel that they have gone away
having settled the dispute on terms with which they are happy to live. A
mediator may be able to provide solutions which are beyond the powers of the
court to provide.”
 What are the Roles of Mediator?
• To guide but not advise the parties during the process.
However, in the case of Tapoohi v Lewenberg, a mediator was
held liable for not advising parties on a legal issue that was
omitted in the mediation agreement thereby making one party
suffer loss.
• help people find the best way to resolve their problems

• encourage parties to identify the real issues

• help the parties explain those issues to each other

• identify points of agreement between the two parties

 What are the Roles of Mediator?
§ work with people to find answers that reflect good faith and
common sense

§ provide an assessment of the risks of the problem escalating

§ seek a resolution that allows both parties to put the issues

behind them.

§ help people find a way through their problem that may not
seem immediately apparent
 What are the Roles of Mediator?
§ Help Develop And Maintain Ground rules For Process
§ Facilitate Communication
§ Facilitate Negotiation
§ Model Active Listening
§ Help Identify Issues
§ Help Gather Information
§ Help Identify Interests
§ Help Set Agenda
§ Facilitate Generation Of Options; Brainstorm, Look To Create Value
§ Caucus.
§ Assist In Negotiation Strategy
§ Reality Check (On Positions, Options, Alternatives).
§ Focus Settlement Discussions (Where Driven By Parties)
§ Clarify Agreement
 Roles Of Mediator-Active Listening

§ Listen!
§ Follow, rather than control, the communication.
§ Leave plenty of room for expression.
§ Use body language consistent with good listening.
§ Validate the speaker’s entitlement to his/her perspective.
§ Show empathy – recognize the emotions and meanings that have
been communicated.
§ Seek clarification with appropriate, open-ended follow-up questions.
§ Give reflective feedback summarizing your understanding of the
party’s statements.
 What are the Roles of Mediator?

The Light at the End of the Tunnel

 What are the Roles of Mediator?
Mediators Can See The Light At End of the Tunnel.

§ One benefit of using a mediator is that caucuses, distance (neutrality),

experience and insight – as well as information gained in caucus and through
confidential submissions – can enable the mediator to see deal possibilities, or
at least the probability of an eventual resolution, when things might look bleak
indeed.

§ As a result:

• When the mediator asks you to hang in there, hang in.

• Help the mediator get the best glimpse of available light by sharing information
with the mediator. (smoking gun slide?)
• Be willing to engage in Talk with the Mediator even when there is a vast spread
in the actual offer/concession history. Sometimes “end game” discussions can
be useful ways to break impasse.
• Question for Participants –What do you do/think/prefer? What variables
change your approach?
• Let it happen. The power of trust and its opposite. Light at the end of the
tunnel
An unsophisticated party, with unsophisticated
counsel, is inclined to accept an offer based on a
misunderstanding of the underlying legal principles
that severely undervalues that party’s case.

Does the mediator have any obligation - ethical or

otherwise - to educate that party?
 Ethical Concerns
In an introductory caucus, claimant’s counsel threatens to
disclose in the context of mediation the marital infidelities,
addictions, and sexual predilections of several respondent’s
senior executives.

What should the mediator do in response, if

anything?
 Ethical Concerns
The parties have reached an impasse. The parties ask
the mediator to change hats and serve as arbitrator.

• How should the mediator respond?

• What should be the response in the converse situation

where the neutral was initially engaged as an arbitrator
and after the first day of the hearing the arbitrator was
asked to suspend the arbitration and instead serve as a
mediator?
 Reading materials include

vCivil Procedure Rules as amended in 2019

vSubordinate court rules
vJudicature ( Mediation Rules) 2013
vDunnett v Railtrack Plc (in railway administration) [2002] 2
All ER 850
vAlexander N “What’s Law Got To Do With It? Mapping
Modern Mediation Movements in Civil and Common Law
Jurisdictions”
vCapelletti M “Alternative Dispute Resolution Processes within
the Framework of the World-Wide Access-to Justice
Movement”
 Reading materials include
• Geofrey Kiryabwire, Alternative Dispute Resolution in Uganda, The
Ugandan Court Experience (2021) Law Africa Publishing, pp 65- 107.

• Nadja Alexander, Ten Trends In International Mediation (2019) 31

SacLJ, 405

• Hogan Lovells, Implementing An Effective Dispute Resolution Strategy

Which Promotes The Use Of Adr, March 2019

• Murray S. Levin, The Propriety of Evaluative Mediation: Concerns

About The Nature And Quality Of An Evaluative Opinion (2001) Vol.
16:2 Ohio State Journal Of Dispute Resolution

• Dorcas Quek, Facilitative Versus Evaluative Mediation, Is There

Necessarily A Dichotomy? [2013] Asian Journal On Mediation ,66