You are welcome once again to the ADR Mediation series.
In our last session, we discussed how to submit a matter to mediation.
Today, we are treating the topic: Appointing a Mediator.
The appointment of a Mediator is a critical part of the mediation process which has to be conducted with optimum care to ensure a successful mediation.
Section 66 of Ghana’s ADR Act 2010, Act 798 deals with the appointment of mediator
Section 66 (1) states that “The parties to a mediation may appoint any person or institution the parties consider acceptable to serve as a mediator. (2) Parties may request the assistance of a suitable institution or person in the appointment of a mediator and may in so doing request the institution or person (a) to recommend the names or provide a list of suitable persons to serve as mediator; or (b) to conduct the mediation.
Remember that in our previous discussion on mediation clause drafting, we mentioned the need to indicate the structure for the appointment of a mediator in the mediation clause.
There are essentially three ways of appointing a mediator.
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Appointment by Parties
The process of appointing a mediator is much easier when it is specified in a mediation clause which often states the identity of the mediator, or stating a criteria to be used in choosing a mediator
Nevertheless, a mediator can be appointed when there is no mediation clause.
When there is a dispute, the parties involved can decide and jointly choose an individual mediator to handle their case. In choosing a mediator, parties must satisfy themselves of the impartiality and professional capability of the chosen mediator.
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Appointment by Institution
If the parties have a mediation clause in which a mediation institution has been named to handle their future dispute, parties can also leave the duty of appointing a mediator that institutions in accordance with the institution’s rules.
However, if a party has reservations about a mediator or mediators provided by the institution, that party has the right to raise objection for that mediator to be changed.
Often mediation institutions provide parties with a list of mediators on their rooster for the parties to choose.
It is therefore essential for parties to understand the rules of a mediation institution they intend to choose.
But if the parties do not want the rules of an institution to apply fully or in part, it should be clearly stated in the mediation clause.
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Appointment by Court
Where a pending case in court is referred to mediation, the court, with the consent of the parties, appoint a mediator for the case.
Where the parties apply to the court for the matter to be referred to mediation, the parties can name a mediator or an institution in their application, for the approval of the court.
Currently, Ghana’s Judicial Service runs the Court Connected ADR system, in which cases are referred to mediators attached to the courts.
Parties who have reservations about the appointment of a court connected mediator, can raise objection for that mediator to be changed.
Now let’s look at the Number of Mediators to be appointed
The number of mediators for the process must be stated in a mediation clause. However, in the absence of that parties can decide to whether the dispute should be mediated by a Sole Mediator or a Panel of mediators. If the case is to be mediated by an institution, parties must bear in mind the mediation rules of the preferred institution regarding the number of mediators.
Where parties desire a panel of mediators, either an odd or even number of mediators can be appointed since they are to work jointly and would not vote on any matter or judge the case.
Thank you for joining us for this session.
We welcome your comments and questions.
Edmund Mingle (mingle@adrdaily.com)
