This is evidenced by an increasing number of cases in other jurisdictions, particularly the US, which highlight how even well intentioned mediators can go wrong if they stray outside the boundaries of the role.

These mediation missteps can be put into a few categories:

Bias or failure to act impartially

Accusations of bias against a mediator are not uncommon. They may be made in the heat of the moment by a frustrated party during a mediation, but are more serious when they form the basis of a complaint. In a recent South African case, a mediated settlement agreement was set aside by a court when it heard that the claimant in the case, who was illiterate, participated in the mediation unrepresented, while his employer was there with legal advice. The court found that the mediator should not have let the mediation proceed with this imbalance of power.

Giving legal advice

It should go without saying that a mediator should not give legal advice, and lawyer-mediators have to be especially careful not to let their legal expertise get the better of them (see also Burying the BATNA below). What may not be as obvious is the potential for a non-lawyer mediator to stray into giving legal advice, as may be the case, for example, in family mediation, where the mediator has a knowledge of the legal parameters of relationship breakdown. In Rhode Island a psychologist-mediator found herself ticked off by the Bar Association for the unauthorised practice of law in the context of her divorce mediation practice. 

Making proposals for settlement

Under the Mediation Act, 2017, a mediator can make proposals for settlement under certain circumstances, but these should be made with extreme care and a water tight disclaimer. Not only does this mean a big shift from the facilitative model, but if the proposal, once accepted, has unintended consequences for one or both parties, the mediator will want to be sure that their neck is not on the line for these.

Burying the BATNA

The most common complaint made against mediators, on looking at international caselaw, is that of coercion to settle. A range of cases from the US, mediators have threatened parties with dire consequences if they did not agree to a settlement, often emphasising the WATNA – Worst Alternative to Negotiated Agreement, while burying the BATNA (best alternative). One mediator threatened to report to the court that the plaintiff was responsible for the mediation failing, something which seems unheard of but could have happened, legally, in Ireland had the government proceeded with a previous draft of the Mediation Act. Another, in an inheritance case, warned the parties they would be financially ruined if they didn’t settle, and that they case stood no chance in court.

These examples might seem extreme, but with mediation becoming increasingly integrated into the Irish dispute resolution infrastructure, and the regulatory boundaries remaining unclear in some aspects,  having an ethical manual is essential for all mediators practising in Ireland.

To learn about ethical practice, and gain the skills and knowledge you need to practice successfully, join our Mediation Training Summer School in July 2025 and earn from the top practitioners in the field.

Click here to learn more: Dublin Mediation Summer School