Best Practices: A Participant Accuses You Of Taking Sides…

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This article originally appeared in the January 1999 issue of Consensus, a newspaper published jointly by the Consensus Building Institute and the
MIT-Harvard Public Disputes Program.

In public dispute
resolution processes, professional mediators and
facilitators must be impartial toward all
parties. Their reputations, and their ability to
effectively help the disputants, depend on such
impartiality.

So for a facilitator, being accused of
partisanship – of favoring one party over the
others or of “taking sides” – can be
especially distressing. How should one respond to
such an accusation?

For answers to this question, we turned to
three mediators who have extensive experience
managing multiparty public disputes: Ric
Richardson, Dean of the School of Architecture
and Planning at the University of New Mexico;
Mary Margaret Golten, Partner at CDR Associates
in Boulder, CO; and Jonathan Raab, President of
Raab and Associates, Ltd. in Boston, MA. Here’s
what they had to say.

Ric Richardson

“I view the promise of nonpartisanship as
central to the responsibilities of a
facilitator,” said Richardson.
“Impartiality is a keystone in building
trust, establishing ongoing relationships, and
working effectively with participants in assisted
negotiations. Nonpartisanship affects the
parties’ confidence in the process, perceptions
of equality, and feelings about fairness in
deciding outcomes. I hold sacred my ‘contract’
with a group to act in an impartial manner.”

Richardson said he thus takes seriously
accusations of partisanship. He recommends four
guidelines for dealing with such circumstances.

“First, get the facts about the context
for the accusations. What is it about my actions
that leads the individual to believe I am
partisan? Second, discuss the situation privately
with the participant as well as other members of
the group who are recommended by the person
making the accusation. How widespread is this
perception? Third, offer to discuss the issues
openly with the group. What is the group’s
insight into the issue? What will be the impact
of my continuing to act as the facilitator of the
negotiations or of my resignation? Finally, be
prepared to resign if the action or the
perception of impartiality compromises your
ability to work effectively.”

Richardson recalled an incident several years
ago when such accusations were leveled at him. He
was part of a facilitation team helping a
32-member task force jointly develop a
rate-moderation plan for an electric utility.
Task force meetings were held in the region where
the impact would be felt.

“Nine months into the twelve-month
negotiation schedule,” Richardson said,
“a consumer representative privately accused
the facilitation team of being partisan to the
interests of the Public Service Commission staff.
We were perceived as being aligned with the staff
because we flew on the same airline to and from
the meetings. The representative also argued that
we had a stake in the outcome, because we were
invested in ‘getting a settlement.’

“I took action immediately. I talked at
length with members of the consumer advocate’s
negotiating team. With their consent, the
co-facilitator and I also talked with
representatives of both the Public Services
Commission and the company. Contrary to the
accusation, the (other) stakeholders recognized
that we were acting in a fair and impartial
manner. In a caucus meeting, the participants
(who were accusing us) decided that we did not
have a stake in the outcome and recognized it was
their job to reach an agreement.” Had the
group not changed its mind,” Richardson
said, he and his co-facilitator would have
resigned.

Mary Margaret Golten

“I think we all agree that we are rarely
‘neutral’ about anything,” said
Golten, “but that it’s generally possible to
behave in a fair, impartial manner. It’s useful
if we don’t love one person or
organization in a stakeholder group, one view or
principle, one specific outcome, and, at the same
time, hate another group or their
position. However, I imagine most of us have been
in that situation at some point in our mediation
careers and have still managed to be fair to all
concerned.”

So, what should a mediator do if challenged
about his or her impartiality? “I’d guess
the first thing is to take that challenge
seriously, not to dismiss it,” Golten said.
“Maybe it’s true. Perhaps the client has
more insight into our biases than we do
ourselves. In such a situation, I would think
hard about my responses to the parties, my
actions, and my body language. Am I looking at
one more than another, sitting closer, asking
more questions, giving more encouragement?
Sometimes private ground rules for myself help,
such as watching the number and tenor of
questions I ask and the amount of time I spend
with the side I may feel closer to or more
comfortable with philosophically – or with the
side who may be an irritation.”

The next challenge, Golten said, is to avoid
denials. “Even if you’ve looked into your
soul and believe that you are feeling and acting
impartially, it’s crucial to listen well
to the clients’ concerns – to be respectful and
to consider how you may be seen. We need to
behave the way we’d like them to behave to each
other.”

“A part of avoiding defensiveness,”
Golten continued, “is to ask the party or
parties who raised the issue to please let you
know if and when your behavior seems biased
toward others, or against them. (Then) ask them
how it is going and how you are doing in private,
from time to time. Sometimes the fact that you’ve
listened and taken it seriously is enough to make
the concern disappear.”

Golten recalled a time when an environmental
representative took Golten and her co-facilitator
aside to say she was very uncomfortable with what
they were doing. She felt they were favoring the
industry side. “We quizzed her, listened,
tried to understand just what she was
seeing,” Golten said. “We told her that
we would be watchful and asked her to continue to
monitor our interchanges. When we checked back in
with her, which we did on several occasions, she
really didn’t feel that we were acting
differently, but for her the problem had gone
away.”

There are times, Golten believes, when it is
actually important to treat the parties
differently because of their differing needs.
“An example is a situation in which we were
mediating between a tribal group and a large
corporation,” she said. “The industry
group was very organized – they had done their
homework, they had lots of support (not only
clerical, but legal, engineering, etc.), and were
ready to negotiate when they came to our meeting.
The tribal group was stressed, having just gone
through an election. They were never prepared
when they arrived at the mediation session. They
had not had time to talk among themselves and
were unwilling to commit to anything, which was
exactly what had been driving the other side
crazy.

“Our approach was to allow the tribal
group extra time to themselves, to meet with them
more frequently, and to strategize with them
longer. When we explained to the industry group
that our judgment was that this extra preparatory
time was necessary for the tribe, in order to
prepare themselves to negotiate they felt our
focus was appropriate, not a sign of bias.”

“In another situation,” Golten said,
“a ‘peace and justice’ group asked how in
the world we, as notorious advocates of peace,
could possibly be nonpartisan in this situation
in which one side were weapons producers. (But)
at the end of the mediation, they told us that
they finally understood our role. Our presence
allowed them to be strong negotiators, which is
what they wanted. Thus their original perceptions
of our position changed as they went through the
process.”

Jonathan Raab

Jonathan Raab believes that it is important,
first, to distinguish between partisanship and
bias. Partisanship, he said, is the act of
treating one party better or worse in a mediation
process. “Facilitators must work hard to
avoid partisanship,” he said. “Each
party must have access to the same information at
the same time and in the same manner as everyone
else.”

“Bias goes more to the substance of
negotiations,” Raab said. “It may be
that you have strong feelings, for example, that
environmental protection is important, but that’s
a different issue than letting that bias spill
over into favoring one party over another. (Being
unbiased) is a higher hurdle that is not
completely realistic and not really
necessary.”

He added a cautionary note: “If you have
substantive experience on the issue at hand, you
may have to fight you own tendencies to be
partisan. Facilitators are human.”

Raab described how he handled a recent case
where a party believed that he was being
partisan. The mediation involved 20 parties, one
of which was a very powerful organization that
was an “outlier” in the process – the
group’s views were very different from those of
the rest of the participants. “There was a
breakthrough at one meeting where this one party
agreed to redefine an economic term so that the
process could go forward,” Raab said.
“I immediately realized that this was a
major breakthrough. It happened early in the day,
and we spent the rest of the day talking about
what this meant. When I wrote up the meeting
minutes, I thought I (captured this discussion)
exactly how it happened.” but at the next
meeting, the staff of this organization claimed
Raab had misconstrued their remarks in the
minutes. “They said, ‘That’s not really what
we agreed to. Here’s some substitute language.’
But the other people thought I had gotten it
right the first time. The discussions got very
heated and took hours.”

“At a certain point there was an implicit
message that I was being partisan, although it
was not an overt accusation,” Raab said.
“I had to say, ‘This isn’t productive. The
reality is that the staff of this organization is
not comfortable with the language. We need to
step back.'” Instead of continuing to argue
over what was or wasn’t said at the last meeting,
the group decided to discuss the issue again
until everyone was comfortable about the
agreements that were being made. Raab thus showed
he was not beholden to one side or another and
avoided any explicit claims of partisanship.

“Avoidance or inoculation is the best
medicine,” for avoiding such situations,
Raab said. “Confront the issue up front.
Tell people at the onset of a process to come to
you if they think you are being partisan. Give
people ample opportunity to review meeting
minutes and comment on them, so the group’s
record is not partisan. Ask participants to
preview difficult issues with you before
meetings.”

What if the accusations are made anyway?
“You need to try not to be defensive,”
he said. “Try to understand why they feel
the way that they do. ‘Rewind the tape,’ take a
look at it, and explore it. Try to not
personalize it. Be empathic, even. The more you
can do this away from the full group, the better.
Probe and prod to see if there if anything to the
claims. If you erred, or it looks like you did
from their perspective, you need to acknowledge
that. You can check with others to see if the
accusation resonates. Then negotiate to see how
you can avoid this in the future…Have those
people signal to you the next time they feel it’s
happening. You might need to give them extra air
time. You might need to make an extra effort to
cater to the disgruntled party, at least in the
short run.”

“If it’s really bad, you need to discuss
whether you should consider stepping down,”
Raab said. “That’s something you need to
take up with the group.”

“In these large, multiparty
processes,” Raab said, “where it’s hard
to get everyone way above their BATNA (best
alternative to a negotiated agreement), people
need a scapegoat. People can make the accusation
(of partisanship) strategically. So you can’t
collapse every time it comes up.”