As Mediators we are not Judges. We are the Facilitators of Dialogue.

I was at an early morning networking breakfast the other day promoting Two Minds Mediation.

I’m very familiar with the format of these events and, depending on the number of members and visitors who turn up on the day, when the time comes to present your business, you’re either given 15 seconds, 30 seconds, or 45 seconds to deliver your pitch. I had my ‘speedy pitch’ ready (even though I’ve never been a fan of this one), as well as a longer version which I was hoping to use that morning.

Fortunately, we were told we could present a 30-second elevator pitch.

When I sat back down, another business owner sitting at my table said, “Wow … 29.5 seconds! You’re clearly a pro at this!”

I’ve probably done this a thousand times, I thought to myself, but just smiled and said something like, “practice makes perfect”.

After the formal pitches, it was time for the actual networking component (think ‘speed dating’ for business owners!).

One member walked up to me and said, “you don’t look old enough to be retired barrister”. It wasn’t the first time I’d encountered the misconception that all mediators are retired barristers. When I explained that I wasn’t, she asked me whether I’d been a judge!

It was at that moment that I realised that if I was ever at an event where I was only give five seconds to deliver my pitch, I would say, “Hi … my name is Paul and I’m a mediator. I’m not a judge. I’m a facilitator of dialogue!”

Straight to the point. After all, mediators do not make decisions.

While mediation offers a pathway out of impasses that might otherwise escalate into costly legal battles or unresolved disputes, there’s often a misunderstanding about the role of a mediator.

Unlike judges, who are empowered to make binding decisions, as mediators, our primary function is not to render judgment but to guide disputing parties towards a mutually beneficial resolution.

As we have shared previously, mediation is a voluntary, confidential process in which a neutral third party— the mediator (us!) — assists the disputing parties to reach a mutually acceptable agreement. It is distinct from litigation, where a judge imposes a decision on the parties involved.

In mediation, the power lies not with the mediator but with the parties themselves.

They retain control over the outcome, choosing to agree, negotiate further, or walk away if no agreement is reached. This fundamental difference in the structure of mediation as opposed to traditional court proceedings underscores our role.

As mediators, we do not possess the authority to enforce a decision. Instead, our role is to help create an environment where both parties feel heard and understood, enabling them to explore options that satisfy their interests.

Impartiality and neutrality are the cornerstones of mediation.

Unlike a judge, who is tasked with determining right or wrong based on the law, a mediator must remain neutral throughout the process. This impartiality is crucial because it allows all parties to feel that their perspectives are valued equally.

We do not take sides, offer legal advice, or suggest specific outcomes.

Instead, we focus on balancing the dialogue, ensuring that no party dominates the conversation and that all relevant issues are brought to the table. Our neutrality fosters trust, which is essential for open communication.

When parties trust that a mediator is not biased, they are more likely to engage fully in the process, expressing their concerns, interests, and potential compromises.

This trust is often what distinguishes mediation from adversarial proceedings, where parties might feel pitted against one another in a win-lose scenario.

The essence of a mediator’s role lies in our ability to facilitate dialogue.

While judges are decision-makers whose primary focus is on applying the law to determine an outcome, mediators focus on the process of communication. We guide the discussion, ask probing questions, and reframe issues to help parties see the dispute from different angles.

The process of facilitated dialogue will often uncover underlying interests that might not have been apparent initially, leading to creative solutions that satisfy both parties. By helping the parties identify these deeper interests, the mediator can assist them in crafting a solution that addresses not just the surface-level issues but also the core of the conflict.

One of the most significant advantages of mediation is that it empowers the parties involved.

Unlike in a courtroom where a judge imposes a decision, mediation allows the parties to retain ownership of the outcome. This sense of control can be particularly important in disputes involving ongoing relationships, where the goal is not just to resolve the immediate issue but to preserve or even strengthen the relationship.

Because we do not dictate terms, the solutions that emerge from mediation are often more sustainable. From experience, when parties are actively involved in crafting the resolution, they are more likely to adhere to the agreement. They have invested in the process and the outcome, which increases their commitment to honouring the agreement. In contrast, a court-imposed judgment, while legally binding, might not address the underlying issues or the emotional needs of the parties, potentially leading to future disputes or non-compliance.

Having said that, while mediation offers many benefits, it is not without its limitations.

For example, mediators do not have the power to compel parties to reach an agreement, nor can they enforce any agreement that is reached. This lack of enforceability is often cited as one of the drawbacks of mediation, particularly in cases where one party is significantly more powerful or where there is a lack of good faith in negotiations.

However, this lack of a binding decision-making power means that mediation is truly collaborative.

The role of the mediator is to guide, support, and encourage, but ultimately, the responsibility for resolving the dispute lies with the parties themselves.

While mediators and judges play very different roles, they are not in opposition to each other. Instead, they serve complementary functions in the broader system of dispute resolution. Mediation can be a valuable step before litigation, offering parties a chance to resolve their differences without the time, cost, and stress associated with court proceedings. Even when mediation does not result in a full agreement, it can help narrow the issues and clarify the parties’ positions, making subsequent legal proceedings more focused and efficient.

Mediators are not judges, nor should they be.

Their role as facilitators of dialogue, rather than arbiters of right and wrong, is what makes mediation a powerful tool for conflict resolution. By remaining neutral, fostering open communication, and empowering parties to take ownership of the outcome, mediators help create resolutions that are not only effective but also sustainable.