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The Role of the Mediator

Sunday, August 30, 2026 5:56 PM | Anonymous















The question is what claims a mediator can raise to one side and how does he/she get the information to make such a claim. Normally, the mediator has information in the mediation statements and/or the initial presentations. When the mediator engages individual caucuses, that information allows he/she to discuss risks with each side. In some cases, the mediator might even do some limited research to be able to offer some thoughts to each side.

What if an issue was only raised tangentially to the mediator and he/she is not able to raise it to the other side, as there is not enough information in order to discuss if it is a risk they should consider. There is a concern about raising it to the side that the issue could help, because in doing so, the mediator could be seen as putting his/her finger on the scales and telling them about a good claim/defense that they might not realize they have. On one hand, the mediator thinks he/she should keep quiet as it's not his/her job to help either side. On the other hand, the mediator is tempted to explore this issue since it will be helpful for both parties to discuss this, particularly as it could help lead the parties to a middle ground. What should the mediator do?

What are your thoughts?

Comments

  • Monday, August 31, 2026 10:56 AM | John M. Delehanty
    This question is too vague to answer in any meaningful way. That said, this issue has never come up in the over 100 mediations I have done. My instinct is that the mediator should not introduce an issue that neither side has briefed. However, my view could change if I knew what the issue was, e.g. if it was so obvious that the parties should have been aware of it.
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  • Monday, August 31, 2026 11:26 AM | Jonathan Herman
    Ask enough questions in order to attempt to elicit from the other side enough facts to fill in the gap regarding the mediator's knowledge of the facts needed to bring the parties closer to a resolution.
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  • Monday, August 31, 2026 4:13 PM | Joe Catania
    I suggest that here's no reason the mediator can't raise the issue with the party who bears the risk of the issue. Even if the opposing side hasn't raised the point there's always the argument that rarely does an issue get totally lost in litigation. Generally speaking, the other side isn't stupid and it can be assumed-so the mediator's argument goes- that eventually the defense or claim or evidence will raise its ugly head. Therefore, even though it's not formally on the table at the moment, it's still a legitimate risk that the party who faces that risk would be well advised to consider. All of that discussion could take place without disclosure to the party unaware of the problem and who would benefit by it being raised..
    Of course, this assumes the mediation takes place in a timeline where eventual discovery of the issue can result in its introduction to the case. If on the eve of trial, for example, an epiphany by the unaware party may not be able to cure the omission so it's not worth considering anyway..
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  • Tuesday, September 08, 2026 11:48 AM | Kyle-Beth Hilfer
    Consider the ethical considerations here. The mediator should not be functioning as legal counsel for either side. It is appropriate to offer evaluative viewpoints where the parties want it, but introducing a whole new legal argument may cross the line, depending on the timing of the mediation and the nature of the case and the parties. I agree with John Delehanty that there is a lot of information missing here to give a fully meaningful answer.
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