This step is essential, as the quality of the support provided depends directly on the trust placed in the mediator (a third party who is impartial, neutral and independent), their expertise and the suitability of their profile for the situation.
In this discussion, our experts share the key criteria for choosing the right mediator and the situations in which co-mediation is a genuine asset.
Katia Pouilly-Mazuer :
Apart from the essential criteria for a mediator’s qualifications—notably neutrality and independence—the parties must be able to rely on a third party who is entirely unconnected to the dispute and has no personal or professional interest in it.
Secondly, I believe that experience and training are also crucial.
A mediator must be specifically trained in mediation techniques, active listening, managing emotions and conducting conflict resolution sessions.
In addition to initial training, mediators should take part in ongoing professional training (practice analysis) and participate in discussions and working groups designed to help them constantly improve.
Lastly, the parties involved must feel at ease and should be able to trust their mediator.
A “good” mediator is someone with whom they feel sufficiently safe to speak freely, within a confidential and structured setting.
Emmanuel Potdevin :
This can be beneficial in certain situations, especially when the issues are highly technical, such as those relating to intellectual property, research or engineering.
Knowledge of the sector enables a mediator to quickly grasp the issues at stake, the terminology used, and the constraints faced by the parties.
However, this is by no means a prerequisite: mediation relies above all on interpersonal, relational and methodological skills.
The mediator’s neutrality takes precedence over their sector-specific expertise. What matters is their ability to foster constructive dialogue.
In this context, co-mediation can be a sensible option. The parties may choose one co-mediator specialising in patents and another in copyright (in a complex dispute involving multiple IP assets), or one co-mediator specialising in IP and another whose expertise or experience lies elsewhere.
Katia Pouilly-Mazuer :
This is known as co-mediation, and it presents several advantages.
We can recommend this approach in situations:
- That involve particularly sensitive or emotionally charged issues;
- Involving several people or teams;
- Where relationships are severely strained;
- Involving diverse issues (legal, organisational, people-related, etc.);
- Where a gender balance or diversity of profiles may help parties to express themselves more freely;
- Or where the parties wish to choose their own mediators.
Two mediators offer complementary perspectives, a better listening dynamic and shared leadership, which helps the process run more smoothly.
If the parties wish to opt for co-mediation, mediators must agree on this principle and approve the co-mediator with whom the process will be conducted.
Emmanuel Potdevin :
Ideally, co-mediators are selected by the parties for their complementary strengths.
They may have different backgrounds, sensibilities, areas of expertise or approaches.
This complementarity helps to deepen understanding of the dispute, better support the parties and ensure a smooth flow in the conduct of the sessions.
It is also essential that co-mediators work in perfect coordination and share a common code of ethics: impartiality, independence, confidentiality, neutrality and goodwill.
Katia Pouilly-Mazuer :
Indirectly, yes.
Not because they provide a solution – that is not the mediator’s role – but because they create the conditions that will enable the parties to find their own solution.
A well-chosen mediator, who inspires confidence and knows how to steer and calm discussions, can be crucial in restoring communication and opening up new, sometimes unexpected, avenues.
Emmanuel Potdevin :
Take the time to speak with the prospective mediator(s), even briefly.
This allows you to assess the quality of the rapport, their understanding of your needs, and the approach they take.
Instinct counts for a lot: if the parties feel heard, respected and safe, it is often the right choice.
You should also ensure that this choice and this trust are shared by all parties and that the mediator is not imposed on any of them.
Télécharger la publicationEmmanuel Potdevin :
A well-chosen mediator – or two co-mediators where the situation calls for it – enables disputes to be addressed with greater calm, efficiency and openness. It is a valuable investment in restoring trust and building lasting solutions.
