The mediator — overviewChoosing a mediator

The method of selection of a mediator can be determined by the mediation clause in the contract. The court can also help the parties to choose; the TCC, Commercial Court and Chancery Division all keep lists of potential mediators. Both CEDR Solve and the ADR Group maintain lists of mediators and can assist in the administration of the mediation. Points to bear in mind when choosing a mediator include: qualification, style, success rate, experience, references and personality.

Conduct of the mediator

Several of the mediation providers have developed Codes of Conduct for their mediators and there is a European Code of Conduct produced by the European Commission. The main ADR providers have asked their mediators to abide by the European Code. Key principles include:

• the mediator must ensure that his acting will not cause a conflict of interest.

• the mediator should engage with the parties prior to the mediation and read any documents it is agreed should be sent to him/her.

• during the mediation, the mediator will normally determine the way in which the mediation should be conducted. He or she must maintain impartiality throughout the process and respect the confidentiality of the information provided to him/her throughout the process.

• there are certain circumstances in which the mediator must withdraw, including if he/she is asked to do so by either of the parties.

• the mediator is generally under an obligation to keep confidential the fact of the mediation and any information arising out of it, subject to certain exceptions.

Liability of the mediator

The mediation agreement may include a clause excluding liability on behalf of the mediator in relation to the conduct of the mediation, although the validity of such clauses has not been tested in the English or Welsh courts.

Furthermore, there are no decided cases against mediators in England and Wales. It is theoretically possible that claims could be brought in:

• negligence

• breach of contract

• misrepresentation

• breach of fiduciary duty

but unless the mediator has clearly given advice or sought to coerce one of the parties into agreeing to a settlement, it is difficult to see how a claim under these heads could be successful. The absence of any cases on this issue suggests that any dissatisfaction that parties might feel with the mediation process is not the legal responsibility of the mediator.