“Can my lawyer be the mediator too?”

I was slightly stunned when a client recently asked me to act as the mediator. I had never been asked to change from acting for one party to attempting to mediate between both. But upon reflection I realised that the client simply hadn’t seen a conflict of interest or position in such a situation.

The mediator is usually a neutral third party who has yet to, and after the mediation will not participate in the proceedings (at least in Singapore). This is important because the mediator plays several important roles:

1.Ensures an orderly mediation process

Some parties expect to sit down at the table and go immediately into horse trading mode. However we would expect the mediator to set out the agenda and get parties to follow the agenda. The mediator would also propose some ground rules e.g. all discussions to be confidential, no party to talk over another to ensure that the discussion does not spiral into a crossfire.

In a private setting, particularly where parties have previously interacted with each other in an adversarial context, it may be difficult to establish these rules of engagement because parties are so used to disagreeing with each other. Unless counsel have been trained or are familiar with mediation processes, and can get their clients to follow their lead, the meeting may get off to a rocky start.

2.Communicates offers between parties

Parties who had some adversarial encounters with each other are more prone to suspecting and second-guessing the other party’s motives behind every statement that they make. It takes extra effort from counsel to diffuse such tensions, especially if they had to take adversarial positions on their clients’ behalf. Having a neutral mediator to speak on behalf of each party in turn helps to dispel the perception that the speaker is acting in the opposing party’s interest.

In addition, by interposing him or herself between the parties, the mediator can neutralise any appearance of unfriendly intention through their choice of words and possibly an explanation of the other parties’ intentions in making that offer. The Chinese saying that bystanders have the clearest view (旁观者清) applies for mediators, which leads to the next (and in my view, possibly the most) important function.

3.Provides a reality check

In an adversarial setting, counsel attempt to persuade the judge or tribunal that the law and the facts should result in a conclusion that is favourable to their client. The parties know for a fact that the opposing counsel’s job is to protect the opposing party’s interests. Therefore, it is difficult to expect to be able to persuade the opposing party that they are better off settling, especially if one of the arguments is that adversarial proceedings are a worse alternative.

When the mediator is a senior member of the judiciary or profession, he or she has credibility when referring to his experience in similar cases, especially when discussing the various obstacles to obtain a favourable judgment or award. As long as the mediator doesn’t cross the line into giving an opinion about the merits of the case, it is generally easier for him or her (compared to either counsel) to persuade the parties that there are advantages in settling through the mediation process.

Having said, it is not entirely impossible. I have participated in such sessions where one lawyer had to switch between counsel and mediator hat, though afterwards he remarked that it was a “schizophrenic” experience. While fees are usually a significant concern especially for individuals or smaller businesses, they usually come out of the mediation feeling that it was time and money well spent on a neutral mediator to facilitate the process, and leaving counsel to perform their advocating and advising functions to the fullest.