Has the legal profession lost sight of the fact that a mediator's job is to assist the parties to reach a commercial settlement of their dispute? To do his job, the mediator needs only to know the briefest outline of the background to the dispute, the position of each party or parties and their advisers to approach the mediation constructively. The mediator doesn't need reams of pleading and evidence because his job is to encourage the parties to stop thinking about what happened in the past and to start thinking about what commercial resolution might be available in the future facilitated by the mediation process.
If parties approach mediation in an adversarial way, as an "opportunity to test arguments and evidence", then they have completely missed the point of mediation and are highly unlikely to act constructively in reaching a settlement. The time to test arguments and evidence is at an expensive and long-winded trial not in a brief mediation. Invariably if a mediation fails, that failure is to be attributed to the attitude of the parties or their advisers and not due to any failure of the mediator or the mediation process.
Steve Rudd, via email