Copyright 2008 Mina Akins Brees page 5

own judgments and/or “perceived” best possible solutions on the parties. The mediator also risks imposing an unworkable solution upon the parties, who may not admit to the mediator why the mediator’s solution will not work. The mediator cannot and should not compel or coerce the parties into an agreement.

This does not mean, however, that the mediator should throw his/her common sense out the window. The mediator, as the facilitator, controls the process by allowing the parties the opportunity to fully develop their options and to test all possible solutions.

There is much debate about whether or not the mediator should assure that agreements are fair and just. The debate of the mediator’s role in ensuring fairness is a continuing one. (1) One side of the debate argues for the parties resolving their dispute in whatever fashion they may choose even if one is foregoing a legal right or entitlement The decision is that party’s own choice to make. (2) The other side of the debate argues that since mediation resolves disputes “in the shadow of the law,” at a minimum the mediators should endorse only a fair result. Or a result which in some way comports with expected or likely court outcome. Problems can arise because what is perceived as fair and just may vary with the mediator and may vary with the parties themselves. So the question is whether the mediator has a duty or responsibility to inform the parties of a term of the agreement which may be unlawful? Or if the agreement is unfair?

Therefore, some commentators suggest that the mediator should raise questions as to the feasibility or equities of all proposed agreements. The mediator should make sure the parties fully understand the mediation process and that they reach agreements based upon sufficient knowledge and information that the parties make informed decisions. The mediator can postpone or reschedule other mediation sessions in order to allow the parties additional time to acquire whatever information may be necessary for settlement purposes.

An example of the “fairness dilemma” occurs when one party to a divorce proceeding is feeling guilty because the marriage is breaking up so the emotional party does not want money or assets to which he/she is legally entitled, and the mediator knows that later after the party regains his/her composure, he/she will regret this decision to forego the money or assets to which they are entitled. Of course, if the party is represented by counsel, it is the attorney’s responsibility to advise his client as to what is legal and fair.

The mediator should also allow the parties to assess and reality-test all possible solutions. The mediator should restate the terms of the agreement in order for the parties to analyze all of its implications. In cases where the mediator is of the opinion that the agreement is unfair, unethical or illegal, most codes of conduct or ethical considerations for mediators urge that the mediator withdraw from the process.

The mediator walks a fine line as an impartial facilitator. Mediator impartiality is maintained by how the mediator chooses to utilize techniques and in how questions and

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