This note follows a series of conversations with students who are candidates for inclusion in a team to go to Paris for the next ICC International Commercial Mediation Competition. All of those I spoke with are Singaporean; all undergraduate and well-informed about mediation, cultural norms, and ADR in general. One question I asked of several of them evoked a response that (i) confirms practitioner experience of party expectations of the mediator’s role; and (ii) empirical observations of cultural variations in mediation practice.
The question is this: imagine that you are either client or counsel in a commercial mediation – how do you think you could make best use of a mediator; what would you ask the mediator to do to assist the negotiations?
There were various replies but the one that interests me, especially as it has implications for mediator preparation for diversity, is this: I’d ask the mediator to make any offers or suggestions on my behalf. There are various versions of this but the basic message is the same: the expectation is that the mediator is not merely active as a facilitator; and not merely (occasionally) more directive than facilitative; rather, the mediator is the active conduit of information.
This takes me back to some of the earliest resources that we relied on when looking at the potential development of non-judicial forms of dispute resolution – in which the mediator is far more than facilitator (in fact, not really that at all); but is instead the manager of information; the conduit; the ‘messenger man’, the authoritative source of information. I recall one version – from Native American societies, in which the mediator was the ‘moccasin man’, defined by the symbolic carrying of a moccasin, marking him as the one with the authority to speak.
In current practice, especially in international and intercultural mediations, what this means is that clients and counsel – typically from non-Western societies – are more likely to ask the mediator to be the conveyer of information. This is not just the familiar role of information gathering, clarification, reframing, refinement of issues and so on.
I was told also of a parallel example in commercial mediations in Vietnam, in which the mediator was asked – even expected – to be the one who conveyed offers between parties. The reasons for this are at least twofold:
- first, it avoids, or reduces the risk of loss of face if the offers are declined by the other party; and
- second, it may give more authority to the offers if they come from the mediator – bearing in mind that a mediator is typically invested with more status-based authority in Asia than might be the case in the West.
The most immediate implication for mediators is to set aside any perception that such requests are indicative of uncertainty, evasiveness, or caginess in information sharing. There is, more likely, a simple expectation that this is what mediators do – and in doing so, they express respect for the other party (avoiding direct confrontation or demands, for example), and express a respect for the authority and status of the mediator.
This is not necessarily a major shift in the job that most mediators do; but it is a matter of emphasis and expectations.