M&A Requires Clear Roles: Separate Roles for Mediators and Lawyers Lead to Better Deals

New Analysis: Separation Model Speeds Up Complex Transactions, Ensures Confidentiality, and Stabilizes Closing - Dual Roles Jeopardize Neutrality and Speed

Zug/Wuppertal, March 18, 2026 - In M&A transactions, the strict separation between mediator and lawyer leads to faster, more legally secure, and more sustainable results than the dual role commonly practiced. This is the conclusion of a recent analysis by Executive Mediation, published today on the industry portal Substack. The study shows: While legal mediators can generally be excellent process facilitators, the effect is undermined in complex M&A contexts as soon as roles are mixed. Confidentiality, impartiality, and speed suffer--three critical factors in transactions involving time pressure, power imbalances, and multiple stakeholders.

Why this matters now: The recent decision by the Higher Regional Court of Celle on August 26, 2025 (2 ORs 96/25) sanctioned the shift from mediator to party representative as a breach of fiduciary duty, thereby tightening the legal line of demarcation. At the same time, regulatory pressure on governance, compliance, and risk management in M&A deals is rising in Germany and Switzerland--earn-out structures, warranty catalogs, ESG criteria, and works council agreements demand professional conflict management, not just legal advice.

The core thesis: The wrong process erodes value

"The wrong process erodes value. The right role architecture enhances it," explains Izolda Petrosyan, SKWM-certified mediator and co-founder of Executive Mediation. "In M&A, it's rarely about the law--it's almost always about value. Anyone who wants to make interests visible, open up room for maneuver, and protect relationships needs a mediator to lead the process. And lawyers to secure rights. Playing both roles simultaneously only works on paper."

The analysis is based on five academic sources as well as case studies from Executive Mediation's consulting practice and examines the legal framework in Germany and Switzerland (ZPO CH Art. 213-218; OLG Celle 2025; German Mediation Act). Key findings:

Evidence: Where the dual role fails

1. Structural conflict: Authority vs. Impartiality
Judges and attorneys bring status and decision-making power to the table--even when they are mediating. Confidential one-on-one discussions (caucuses) conflict with the principle of equal treatment; the appearance of bias undermines acceptance. In complex M&A conflicts involving private equity, management, banks, regulators, and works councils, this argues in favor of external mediators.

2. Legal guidelines reinforce separation

* Switzerland (ZPO Art. 47 para. 1 lit. b): Anyone who previously mediated in the same matter creates grounds for recusal in another role.
* Germany (OLG Celle, Aug. 26, 2025): A role change from mediator to party representative may constitute a breach of fiduciary duty.
* Confidentiality (ZPO CH Art. 166(1)(d)): Statements made during mediation are inadmissible in court proceedings; mediation records are not disclosed.

3. M&A Engine Room: Multiple Issues, Many Stakeholders, Fast Pace
Negotiations cover price, earn-outs, guarantees, liability, taxes, personnel, and IT. Signing and closing set the pace; asymmetries shape data, power, and time. Mediation creates value here through:

* Mapping issues instead of mixing them
* Disclosure of interests (cash today, security tomorrow, control in the long term)
* Bundling options (A for price, B for risk, C for transition)
* Sequence planning (principles first, then numbers, then clauses)

Involvement of third parties (insurers, authorities) that a court ruling cannot achieve

Real-world case study: Family sale to a private equity fund

Starting point: Earn-out, guarantees, works council--the list is long, the tone is tense. Time pressure: Signing deadline in 12 weeks.
Intervention: The mediator structures the issues and conducts separate preliminary discussions (caucuses). The lawyers provide parallel advice outside the mediation.
Result:

* Earn-out linked to operational levers (instead of revenue targets)
* Guarantee catalog streamlined, escrow increased
* Social plan brought forward
Effect: Signing in 8 weeks, relationship intact, closing secured.

The Separation Model in Practice

Mediator:

* Leads the negotiation process, breaks down barriers, keeps the parties engaged in dialogue--without assessing legal prospects.

Lawyers:

* Advise on opportunities and risks, ensure decision-making capacity and deadlines--without taking over process management.

Individual Sessions (Caucus):

* Serve as a reality check and for risk clarification, remaining strictly outside the scope of legal advice.

Enforcement Path:

* Mediation settlements can be approved with legal certainty (court homologation, ZPO CH Art. 217) and enforced--without dragging the substance of the agreement into court proceedings.

Implications for Companies, M&A Advisors, and Executive Teams

? For CFOs & Executive Management:

* Separation model accelerates time-to-close for complex transactions
* Confidential one-on-one discussions create space for risk clarification without losing face
* Self-negotiated agreements have been shown to last longer than litigated judgments

? For M&A Advisors & Deal Counsel:

* Clear role definitions protect against allegations of bias and recusal risks
* Legal advice remains outside the mediation process--without conflicts of interest

? For HR & Compliance:

* Governance-ready processes: Mediation integrates the works council, supervisory board, and third parties
* Non-disclosure agreements protect sensitive information

? For Private Equity & Investors:

* Earn-out structures can be negotiated based on interests rather than positions
* Escrow amounts and guarantee catalogs are pragmatically optimized rather than litigated

Methodology & Sources

The analysis is based on:

* Mack-Oberth, Michael (2005): Judges as Mediators (context analysis)
* Boesch, Peter (2006): Courts and Mediation - Partners or Competitors? (structural analysis DE/CH)
* Zurich High Court (2022): Information Sheet on Mediation (ZPO CH Art. 213-218)
* Higher Regional Court of Celle (August 26, 2025): Breach of Fiduciary Duty in the Role Transition from Mediator to Party Representative (2 ORs 96/25)
* Peter, James T. (2021): Dos & Don'ts - For Attorneys in Mediation (ZZZ 2021)

Full text of the analysis:
https://executivemediation.substack.com/p/m-and-a-braucht-rollenklarheit-juristen

Statement: "The mediator builds bridges; the lawyers secure them"

Dr. Hartmut Frenzel, business mediator and co-founder of Executive Mediation:
"Lawyers can be excellent mediators--if they change their approach and methodology. In M&A, a strict separation of roles yields better results: The mediator shapes the process and safeguards trust, while lawyers secure rights and draft robust contracts. The legal framework in Germany and Switzerland supports this division of labor through neutrality, confidentiality, recusal, and clear enforcement pathways. This reduces transaction costs, unlocks options, and stabilizes execution."

Minimum Standards That Save Deals

Executive Mediation recommends five guidelines for M&A teams:

* Explicit role definition: No legal advice during mediation
* Impartiality and confidentiality: Set in writing
* Separate channels: Mediation records remain outside the deal documents
* Process design before commencement: Clarify topics, sequence, and decision points
* Clarify enforcement path: Approval/homologation - legal force without interference

Dr. Hartmut Frenzel | EXECUTIVE MEDIATION
Fuhlrottstr. 15
42119 Wuppertal
Germany

https://executive-mediation.pro/

Herr Dr.Hartmut Frenzel
+49-1602912140

hf@executive-mediation.pro

About Executive Mediation

Executive Mediation specializes in resolving complex business conflicts at the C-level--quickly, discreetly, and with legal certainty. Co-mediators Izolda Petrosyan (B.A. in Business Administration, SKWM Mediator, SKWM Conflict Manager) and Dr. Hartmut Frenzel (Certified Mediator D/CH, Business Mediator, IMI Qualified Mediator, DIS Member) support M&A transactions, shareholder conflicts, post-merger integration, and deal mediation.

Key Areas:

M&A conflict resolution (earn-outs, guarantees, social plans)
Shareholder conflicts & succession planning
Post-merger integration & restructuring
Deal mediation (neutral process management for new contracts)

Locations: Wuppertal (Germany) and Zug (CH) - Clients worldwide

Knowledge platform: executivemediation.substack.com
Website: executive-mediation.pro
Press contact

Izolda Petrosyan
Executive Mediation
Email: ip@executive-mediation.pro
Mobile: +41 78 422 33 48 (CH)

Dr. Hartmut Frenzel
Executive Mediation
Email: hf@executive-mediation.pro
Mobile: +49 160 29 12 140 (DE)

This release was published on openPR.