It’s an important alternative method of controversy solution, where the Parties play fundamental role in settlement seeking, showing the Mediator their main interests.
The Mediator’s role is to make out some possible common interests areas and imagine some alternatives to be developed, even if those were not anticipated or signalized by the Parties. The Parties’ role is the most important and decisive one. They can settle or even give up the process, if the results don’t please one or both Parties.
The Mediator, through the joint sessions, must find out the problems and controversies to be solved. Afterwards, in private sessions with each of the Parties, the Mediator will understand which their interests are.
An important characteristic of the process is confidentiality. If one Party wishes that some information or even some of its interest should not be revealed to the other Party, it could ask the Mediator to be discreet.
In this process the Mediator role is to act as a facilitator. It’s not allowed to express any opinions, to side with any of the Parties, nor to advise and give instructions about what could be done or the chances of success in subsequent dispute.
Although some Infrastructure Contracts foresee so, it is not usual that the Mediator express an opinion or a recommendation if there is no deal at the end of the process. After all, a simple prevision of a vote emission by the Mediator at the end of the process could embarrass the Party to reveal facts that could eventually help in the mediation process, but in the other hand, if revealed, they might lead the Mediator to vote against the Party in his or her report or recommendation.
In Mediation, the participation of the consultancy could happen only as a Mediator.