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<xTITLE>The Second Mediator? The Role of Mediator’s Assistant</xTITLE>

The Second Mediator? The Role of Mediator’s Assistant

by Charles Mak, Carrie Shu Shang
July 2020

Mediation is a voluntary process in which parties can choose their mediator, and the mission of a mediator is usually to facilitate communication between the parties in conflict to reach a mutual agreement. In large and complex international arbitration, the use of tribunal secretary is more a well-established practice. To facilitate the smooth and efficient functioning of large and complex mediations, it might be necessary for mediators to appoint their assistants by taking tribunal secretary in arbitration as a reference. In this post, we will examine the role and status of the mediator’s assistant throughout the mediation process, and argue that the mediator and parties will be benefited from the assistance of the mediator’s assistant. We will also examine possible ethical implications of using mediator’s assistant considering current mediator obligations. 

Role of mediator’s assistant:

In large and complicated international commercial mediation, the mediator could appoint an assistant to take responsibility for administrative arrangements which would otherwise fall to be made by the mediator and act as a link between the parties and the mediators. There are two prongs of tasks that the mediator’s assistant should perform, which include 1) administrative services and 2) professional process management. Mediator’s assistant would assist the mediator to perform the administrative tasks for the mediation process. Those administrative tasks are mainly organisational tasks and logistics for the meetings which include finding and sourcing meeting rooms for mediation, providing or coordinating secretarial and interpretation services, arranging visas, hotels reservation, booking flights and local transportation for the parties and mediators. Another part of the tasks that the mediator’s assistant should perform is process management.  For example, the mediator’s assistant can conduct the conflict check for the mediators by checking the list of their clients, current, and past and ensure that there is a conflict of interest. Also, the mediator’s assistant can proofread the binding settlement agreement drafted by the mediator if the parties can reach a mutually agreed settlement.

Overall, like using tribunal secretaries, the mediator’s assistant can enhance the mediator’s efficiency in the mediation process. This allows the mediator with more time to concentrate on the mediation process itself and not on administrative matters. Mediator’s assistant would also lower the cost of mediation as the mediator’s assistant will be paid at lower fees in performing those tasks when compared with the mediator. Also, it will provide an opportunity for the aspiring junior mediators to learn how to act as a facilitator to ensure the flow of discussion and make sure the parties are focusing on the matters that contribute to the resolution. Such an opportunity is invaluable for newly trained mediators.

Ethical implications of using mediator’s assistant:

Despite increasing interest in using mediator’s assistant for the interests of cost and time efficiency, there is a fear that mediators delegate their duties and let mediator’s assistant to become the second mediator to be involved in the mediation process. Current mediator codes of conduct also need to be adjusted to accommodate proper involvement of mediator assistants. 

Primarily, confidentiality rules could be a bar. As a private dispute resolution process, mediation is private and confidential. Parties in the mediation process must consent to the presence of any third party in the process due to confidentiality. Where the mediation agreement and law provided, the confidentiality of the mediation process, documents and the settlement agreement, such provisions would become binding on the mediator’s assistant as well. Inevitably, the mediator’ assistant will have exposed her to such confidential issues due to her job nature. Therefore, it is crucial for the mediator to properly disclose any possible involvement of mediator’s assistant beforehand and obtain proper written consent from disputing parties.

Quality wise, parties in dispute who chose mediation as their dispute resolution mechanism would appoint the particular mediator for her perceived skills, experience and reputation. Therefore, the mediator must not delegate her mandate once she accepted the appointment. Even though there is no express reference to such a duty, it is a usual practice that largely accepted by the international mediation community. The concept of aspiring mediator served an apprenticeship in the mediation process is one of the principal justifications for the use of mediator’s assistant. However, in most of the cases, apprentices learn by doing not by merely observing.

Regarding standards of care, any mediator who appoints mediator’s assistant must take care not to delegate any part of her facilitation in a way that would dilute the mediator’s mandate.  There may be concern over the parties who have chosen their own mediator with much diligence and care but who have had no say as to the appointment of the mediator’s assistant. Even though there is a risk of dilution in mandate when appointing a mediator, these risks are outweighed by the benefits of using a mediator’s assistant.

Calling for a uniform guideline of mediator’s assistant code of conduct:

Unlike the tribunal secretary in international arbitration, there is no official definition of the role of mediator’s assistant in most type of ethical rules and mediation institution-specific rules, such as the International Mediation Institute Mediation Rules and Hong Kong Mediation Centre Mediation Rules. As mediation is largely unregulated in most parts of the world, national laws rarely regulate the position of mediator in any mediation proceeding, not to mention mediator’s assistant. Therefore, there is no single answer as to the role of the mediator’s assistant in the mediation process. If using mediator’s assistant was to become a trend, the international mediation community should consider regulating them uniformly. Professional associations such as the International Bar Association could form taskforces researching the development of a uniform guideline of best practices for mediator’s assistants, looking up to works related to arbitral tribunal secretary already done by arbitration institutions alike. It is one of the areas requiring community self-governance efforts leading to the increase of overall welfare of the community as a whole, and worth more scholarly and practical attention.

Conclusion remarks:

The reasonable and justifiable use of the mediator’s assistant in large and complicated international mediations improves the efficiency of the mediation process, which would be benefited for both the mediator and the parties. The mediator’s assistant would assist the mediator to perform administrative and process management tasks that could greatly reduce the workload of the mediator and allow her to focus on the parties’ needs and concerns over the disputes. However, there is a concern over the role of the mediator’s assistant may affect changing ethical codes of conduct of mediators throughout the process. This concern is best addressed by a uniform set of regulations for the mediator’s assistant relying on self-governance initiatives.

Biography


Charles Mak

Charles Ho Wang Mak is a Ph.D. Candidate in International Law at the University of Glasgow. He attended the University of Sussex in England (LL.B. (Hons.)), The Chinese University of Hong Kong (LL.M. in International Economic Law), and the City University of Hong Kong (LL.M.Arb.D.R.). He is a Fellow of the Chartered Institute of Arbitrators (FCIArb), the Hong Kong Institute of Arbitrators (FHKIArb) and the Royal Asiatic Society of Great Britain and Ireland (FRAS). He is also a member of the Asian Institute of Alternative Dispute Resolution (MAIADR). He earned accreditation as a tribunal secretary at the Hong Kong International Arbitration Centre. In 2019, he was admitted as the first member of the Australian Centre for International Commercial Arbitration (ACICA) Tribunal Secretary Panel from Hong Kong and China.


Carrie Shu Shang is an Assistant Professor of Business Law at California State Polytechnic University, Pomona. She obtained her J.D. from University of Southern California School of Law, and her B.A./B.S. (with High Honors) from University of California, Berkeley. Prior to joining the academia, she was the Chief Representative of Hong Kong International Arbitration Centre’s PRC Office (2017-18). She is admitted to the New York (2013) and California Bar (2019), and is qualified to practice law in the People’s Republic of China. She is a practicing mediator and an UDRP panelist of several ICANN accredited providers. She’s also on the Membership Committee of the Silicon Valley Arbitration and Mediation Center (SVAMC).