The author is an attorney-at-law at Schellenberg Wittmer in Geneva, Switzerland, specializing in international arbitration. She holds an LL.M. from Columbia Law School. Ms. Azeredo da Silveira can be reached by phone at +41 (0) 22 707 8000 or by email at Mercedeh.daSilveira@swlegal.ch.
Current views of mediation, the mission of the mediator and the debate over mediators providing legal advice.
Sine qua non of alternative dispute resolution (ADR) is the parties’ right to self-determination, which in mediation involves the ability to select the mediator and decide whether to agree to a settlement of all or some of the disputed issues. Mediators, lawyers and scholars agree that compliance with the mediator’s duty to remain impartial during and after mediation is crucial both for the process to succeed and the parties’ rights to be protected. By complying with the duty to remain impartial, the mediator contributes to the betterment of the practice of mediation. As one commentator noted, “mediator impartiality instills trust, enables the parties to collaborate and share information with the mediator and other parties, protects mediation agreements from subsequent challenges, and helps prevent abuses of the process. In addition, an appearance of impartiality promotes public confidence in the fairness of the process.”1