[Originally published in the February 2018 Boulder County Bar Association newsletter]
Whenever I try look for universal rules regarding mediation, I end up circling back to the thing I love most about being a mediator: that mediation is truly an art, not a science. It’s an art because, as much as my lawyer brain wants to categorize the process into a set of predictable behaviors and principles, mediation eludes such reductions. I see this in my attempts to formulate a consistent definition of mediator neutrality.
Treatises about mediation invariably discuss the importance of a “neutral” and “impartial” mediator. The presentation of the mediator as neutral is a major aspect of what lends mediation legitimacy in the public eye, in part by aligning it with the judicial concept of an impartial judge.[i] At a minimum, this means the mediator does not have a personal conflict of interest with respect to the parties or the dispute. Neutrality also can refer to process equality, which can include such things as spending relatively equal time with each party in caucus.
Things get trickier when one attempts to define neutrality in the context of outcome and the mediator’s relationship to the parties. With respect to the former, some theorists contend a mediator should be completely disinterested in the outcome of a mediation. This is often advanced in furtherance of the ideal of participant empowerment and self-determination. With regard to the latter, mediators are expected to remain unbiased toward the parties.[ii]
In the trenches of mediation, however, the clarity of these apparently self-evident principles can begin to break down. As a divorce mediator, I frequently (almost always) work with people who are intense pain. Like cats on a hot tin roof, they are often more interested in how effective I can be in getting them off where they are and into a workable solution, than in helping them to be self-efficacious, fully expressed, or to “get the other person’s world.” On the other hand, at times it‘s impossible for parties to move forward until they feel the other party has heard and gotten, at least on some level, where they are coming from. Deciding which is more important in a given moment is one of the artistic practices of mediation.
Parties may also be interested in having me use my knowledge as a family lawyer, and skills as a mediator, to help ensure they are not taken advantage of, or agreeing to a bad deal that is unsupported by the law. They may be down-power and unable to effectively negotiate with a more aggressive or knowledgeable opponent. In such cases they may justifiably feel poorly served by a mediator who has zero interest in outcome. The Model Standards implicitly acknowledge this concern by stating: “Although party self-determination for process design is a fundamental principle of mediation practice, a mediator may need to balance such party self-determination with a mediator’s duty to conduct a quality process . . . .”[iii]
Ultimately, if I’m going to take up people’s time and money and encourage them to entrust me as a guide, I often feel a greater interest in being effective in getting them from the mess they’re in into a workable solution, than in promoting lofty principles of self-determination. The art of mediation contemplates balancing these sometimes-divergent interests.
Neutrality and impartiality principles run into further complication when you consider two of the major differences between mediators and judges. Unlike a judge, as a mediator I get to meet separately with each party. I often use that right as a means to establish the trust necessary to get me past the second distinction: my inability to decide anything. Thus, to be effective, I must gain the parties’ trust that I can be impartial, while simultaneously getting them to understand that I truly empathize with, and acknowledging the inherent validity of, their seemingly irreconcilable positions and interests. To accomplish this, I have to be operating on what Ken Wilber describes as an “integral level” of development: able to hold multiple perspectives simultaneously. As I align with each party in caucus in this way, I may appear to be violating strict principles of mediator neutrality. But I often find only after I establish such a trust connection can I get parties to consider me credible when I suggest another perspective can be validly held by their opponent and should be considered. Again, when I do that, I must continuously track the micro-data coming from the parties and adjust my approach accordingly, to maintain their trust in my neutrality.
The apparent tension between impartiality and the need to establish trust may be more a reflection of two different ethics: an ethic of impartiality and an ethic of care. “[T]he ethic of care includes feeling responsibility toward [each] party and concern for that person’s needs; it is manifested in forming a personal relationship with each side and showing empathy, involvement, understanding and support. This latter ethic might necessitate that the mediator intervene in the content of the dispute.” [iv]
Finally, a mediator who fails to account for the implicit biases and prejudices he or she may hold toward individual parties—often in contrast to the mediator’s explicitly held beliefs—is ill-equipped to maintain neutrality. The Implicit Association Test (IAT), an instrument taken by over two million people, seems to demonstrate that no one is free from unconscious assumptions.[v] While I cannot rid myself of such unconscious assumptions, I can be aware that they are lurking, and be constantly on the lookout for their impact on how I conduct myself toward each party.
Maintaining neutrality while being effective as a mediator is all part of the art—and the fun—of being a mediator.
Peter Fabish is a co-founder of Conscious Family Law & Mediation LLC, offering collaborative divorce mediation or legal representation with strength and integrity, in metro Denver/Boulder, Colorado.
[i] Mayer, B. (2004) Beyond Neutrality: Confronting the Crisis in Conflict Resolution.
[ii] See Model Standards of Conduct for Mediators (2007), available at https://www.americanbar.org/content/dam/aba/migrated/dispute/documents/model_standards_conduct_april2007.authcheckdam.pdf
[iv] Zamir, R. (2011). The disempowering relationship between mediator neutrality and judicial impartiality: Toward a new mediation ethic. Pepperdine Dispute Resolution Law Journal, Vol. 11: 467.
[v] Izumi, C. (2010). Implicit bias and the illusion of mediator neutrality. Washington University Journal of Law & Policy. Vol. 34, 71.