Minimally, a mediator needs to be credible and conversant in the terms of the parties' dispute. Sometimes, especially in civil mediation, parties and/or their advocates desire that the mediator be a substantive expert in the area of the dispute. Such expressed desires are important in that disputants are entitled to define both the nature of the process and the type of mediator they would like to work with.
There are reasons, however, why the mediator may want to be cautious about acting as the substantive expert, even if he or she is qualified to do so. First of all, they may not be "right" in their assessment or advice. Beyond that, and even if they are "right," the mediator acting as substantive expert may deprive parties of their own "power" and ability to resolve their dispute on terms that make sense to them. Similar to making a recommendation for settlement, the mediator acting as expert runs the risk of disaffecting at least one party with his or her opinions, quite possibly to the extent of jeopardizing the mediator's ability to effectively continue and the parties' ability to agree
The issue of mediator acting as substantive expert is not subject to "right" or "wrong" analysis. In addition to depending on the desires of the participants, there are many ways expertise can be shared in a mediation. Being "expert" in an area allows a mediator to effectively ask questions to assist the parties to assess the strength of their respective cases. The mediator may be able to direct parties to resources that may assist them to more realistically assess the outcome of a contested hearing. Being "expert" is also helpful in assisting parties to consider:
- the full range of issues that similarly situating parties commonly consider;
- to help participants understand settlement options that are commonly considered on certain issues; and
- to help participants identify possible strengths and weaknesses of each option.
If desired, the "expert" mediator can assure parties that their settlement is "within the bounds of reason." Substantive expertise in mediation is generally an asset for the mediator. It can be a liability, however, if it leads the mediator to be so advice-giving and judgmental as to deprive the parties of their self-determination and creative power.