Who Controls an Observer or Co-Mediator’s Role?

Procedural posture and result

Advisory-opinion request concerning the ethical responsibilities of a conducting mediator when another mediator participates as an observer or co-mediator, exceeds the role approved by the parties, or discloses mediation communications. The committee concluded that additional participants require party approval, must remain within their authorized roles, and remain subject to mediation confidentiality requirements.

What happened and what the authority decided

A Florida-certified mediator reported concerns about another certified mediator who had observed several mediations. According to the request, the observing mediator sometimes appeared without advance permission, interrupted the conducting mediator and the parties, offered unsolicited advice and direction, assumed control of a mediation, changed the nature of the observer’s participation, and disclosed mediation information to mediators who had not participated in the sessions.The Mediator Ethics Advisory Committee concluded that before an observer or co-mediator participates, the conducting mediator must explain the proposed role and obtain the parties’ express permission. An additional participant must remain within the role the parties approved and may not change roles without their express consent.

The committee further emphasized that the mediator conducting the session remains responsible for safeguarding the mediation process. If an additional participant exceeds the agreed role, the parties determine whether and under what circumstances the mediation should continue, terminate, or be rescheduled.

The committee also concluded that mediation communications generally may not be disclosed to nonparticipants except as permitted by applicable statutory exceptions. These requirements apply regardless of whether the additional mediator is the conducting mediator’s supervisor.

What this tells the mediator

Workplace titles and supervisory authority do not override party self-determination. The mediator conducting the session must safeguard the process by controlling access, explaining participant roles, obtaining informed party consent, addressing unauthorized role changes, and protecting confidential mediation communications.

Practical guidance

• Identify every participant and proposed role before substantive discussion begins.
• Obtain express consent from all parties before admitting an observer or co-mediator.
• State role limits on the record or in the mediation agreement.
• Pause the session if an observer exceeds the approved role and ask the parties how to proceed.
• Do not discuss the mediation with supervisors or colleagues who are not authorized participants.