Each mediator has his own list of the toughest issues that can arise in mediation. Some say that breaking deadlock should top the list. Mine are perhaps more idiosyncratic. They are:
1. making sure that each party has full authority to settle the dispute;
2. negotiating sharing agreements among defendants in multi-party cases;
3. getting a party’s lawyer to recognise that his position is ‘wrong on the law’ or its application;
4. turning the parties away from positional bargaining;
5. stopping myself from substituting my expertise for that of the parties; and
6. terminating the mediation – when and under what circumstances.

1. Insisting on full authority
Mediators have no power to insist on anything; the most they can do is refuse to mediate the dispute. With this in mind, most mediators nonetheless try to assure that parties come with full authority to settle it. Full means full, but all the parties rarely come with it. One or the other is bound to come with limited authority: that is, authority up to a certain amount, say £100,000. And, of course, they never bother to tell the mediator. In my experience this is a major cause of mediation failure.
Obviously, if a party comes with no authority, the mediation cannot proceed. But if a party comes with limited authority, many mediators now insist that they be informed of this prior to the mediation. If the limits on that authority are severe, say £10,000 to settle what may be a viable £2m claim, and the mediator is informed of this in confidence, he may nonetheless insist that the other parties be made aware of this; they can decide for themselves if they want to proceed on that basis. If an insurance carrier comes to the mediation with a £1m limit to settle a £5m claim, the mediator may insist that a representative of the top-up carrier be present or be available by telephone.
In cases which require final approval from a board of directors or some other governing body, the mediator may insist that the party present be armed with authority to ‘effectively recommend’ the outcome.
And in cases where a party comes with £25m of authority to settle a £100m claim, the mediator may insist on nothing at all. Each case is different and each presents its own problems. But the mediator cannot effectively deal with any of them unless he knows the limits of each party’s authority – prior to the mediation.