The ‘Weapon of Last Resort’ in a Mediator's Toolkit :
Withdraw from the role of Mediator?
1st December 2024
It was interesting several weeks ago to hear not so much that Qatar had withdrawn from the role of ‘mediator’ in the talks between Israel and Hamas in the Middle East conflict ….. but more interestingly, the reported reasons as to why they chose to withdraw.
Whilst the importance of this process (if not the actual mediation) is seemingly of far greater importance to that of any mediation that most mediators will ever face (and one which I could never imagine being comfortable being involved with), the decision by Qatar to withdraw from its role as ‘mediator’ demonstrates one key aspect of mediation that any party to a mediation can exercise (including the mediator) without any direct repercussion ……. and that is the right to walk away at any point.
Politics to One-Side
I have to state that I don’t want to get ‘bogged-down’ in the politics of the middle-east, or the opinions that one person or other may have of particular states, countries, individuals or groups involved (and I would respectfully ask no one comments or offers feedback of that nature).
As with quite a few cases of mediation, there may be questions asked of the ‘mediation’ in this case as to:
- What is the level of confidentiality?
- What is the involvement of other ‘actors’ on the periphery of this ‘mediation’ – and are these conducive or destructive to a settlement?
- Are there any political (or other) motivating factors to act as mediator in this matter, and thus arguably have a conflict of interests?
- Are multiple mediation processes underway at the same time, possibly with different mediators; which may possibly ‘muddy the waters’ and be counter-productive?
- Has this process been more one of ‘negotiation’ than actual ‘mediation’?
- Is the term ‘mediation’ (or ‘mediator’) a productive one to use in this matter, given the different interpretations it has around the world?
………… and many more questions could possibly be asked.
Yet, the resounding positive note to take from this dispute, is that mediation was actually entertained by the disputant parties in the first place ……. or was it?
Absence of the Vital Ingredient …….. 'Good Faith'
The one aspect that I believe any good, conscientious, and professional practicing mediator will recognise in this dispute, is the reason why Qatar reportedly chose to withdraw from the process. I have spoken in previous articles about the vital ingredient of ‘good faith’, and the absence of such really undermines any mediation process.
Now, the reasoning why a party does not enter into a mediation process in good faith can be wide and varied; from avoiding costs that may be awarded in a later litigation by ‘falsely’ engaging in mediation, to making the other party suffer in terms of cost and prolonging the process.
I would prefer for a party in dispute (who has any reluctance towards mediation) to have an open conversation with me as a mediator as to why they don’t want to mediate rather than just enter into the process without ‘good faith’. Yet, I readily accept that this is not the case with all mediators, after all, in most cases as a mediator you are often paid up-front for a prescribed period of mediation, and ‘some’ mediators seem happy to watch the clock and collect their fee.
Yet for me, as for many other mediators, it is safe to say that is not the case, and helping the parties reach a settlement and/or agreement is the priority.
Does Good Faith Have to be Unanimous in Mediation?
Subsequently, that brings us to the question of whether ‘good faith’ has to be unanimous in a mediation, to help maximise the chances of a successful mediation.
Some may say that yes, the disputant parties need to have ‘good faith’ in the mediation process. Yet, I would go one step further and say that the mediator themself needs to demonstrate good faith to all involved (i.e. the disputants, their advisors, and any expert witnesses) and ultimately the process.
Hence, what is important is that everyone involved enters into the mediation process, including the advocates and advisors to the disputants – who play a crucial role not only in conscientiously bringing disputes to mediation but also the vital roles they play before, during, and after the mediation process concludes.
Is a Mediator Withdrawing a Sign of their Failure, the Mediation Process, or Mediation as a Whole?
As I have written about before, every mediator has their own ‘flavour’, style, and approach to mediation; which they may change based on the nature of the dispute, the parties involved, or the way the mediation progresses.
Just one of these elements is how they control and allocate time to the mediation process; e.g. whether they extend the mediation, and in this case when and how they decide to withdraw from a mediation process.
I believe in setting a timescale in advance for the envisaged mediation (e.g. half a day, a day, or in some cases maybe longer). Then have the option to extend that if need be, or hopefully finish early if a satisfactory settlement (not necessarily the first) is achieved.
HOWEVER, like many mediators, I will have no hesitation in bringing mediation to a close (even prematurely) if I don’t believe a settlement is achievable at that time. Yes, clues (of varying degrees) will be given as to the possibility of this, however, I don’t believe in setting deadlines in such situations given how this can affect the mediation process.
One of the clearest situations where I will withdraw as a mediator from the process and bring the mediation to a close is where I believe a party is clearly NOT demonstrating good faith to the other parties and/or the process.
You Can 'Lead a Horse to Water'
Hence, in the case of Qatar, reports suggest that they didn’t believe either disputant party was demonstrating ‘good faith’ in the mediation process, and as such I agree that there is no point in continuing as the mediator.
As the old adage says “You can lead a horse to water, but you cannot make it drink”, and despite the best efforts of any mediator and various parties involved in a mediation – if someone doesn’t want to enter into the process of mediation in ‘good faith’ you cannot force them to.
What May Lead a Mediator to Withdraw from their Role?
The question for me however is whether there is an underlying reason (or reasons) as to why the mediator has chosen to withdraw from the mediation process, or even the timing of such a decision. Such as:
- Does the mediator believe the mediation (or the parties) will benefit from a fresh approach or a different mediation model or will a different mediator have an impact
- Do the parties need a break from mediation and/or time to reflect, re-evaluate their positions and mindsets?
- Will a change in the parties' mindsets and approaches be prompted by the mediator somewhat unexpectedly withdrawing?
- Are external factors/parties affecting the mediation process, and thus a reset is needed?
OR
- Is it simply that ……… the mediator no longer believes mediation is viable in the dispute under the current circumstances?
The simple matter is that in most cases, only the mediator will know the true reasons for their withdrawal…….. and they may divulge some of the reasoning for such a decision (taking confidentiality into account). But in my view, a mediator mustn’t aimlessly continue a mediation process whereby in their true and objective opinion there is no chance of a resolution or successful mediation ‘on the horizon’.
Ultimately, where a mediator is of the opinion that the vital ingredient of ‘good faith’ is lacking, this is as good a reason as any for the mediator to use their ‘ultimate’ tool ….. and then rightfully withdraw from the mediation process.