Have you ever found yourself swaying unconsciously (with concern) towards one party in a mediation process? Have you experienced the difficulties in staying completely neutral in mediation? If you are a practicing mediator, you are sure to meet similar challenges in your practice.
The issue of neutrality as a mediation principle is so important because it determines how successful the process turns out. The success of a mediator depends to a large extent on how neutral s/he is perceived in the mediation process by the parties. Therefore as practitioners, it is necessary that we worry about the possibility of our biases taking over our actions during mediation processes we are involved in. I have received a number of mails from fellow practitioners about their struggle with issues of self bias.
In my article ‘Mediation and the principle of neutrality’ , I stated that “a mediator’s past experiences and contact with society on specific levels may most often be brought to bear and affect behaviour during mediation”. We all have biases that in subtle and unconscious ways find their way into the mediation process. Recognizing them is a first step to understanding their impact. Knowing how to tame these biases is the next logical step. In this article, I intend to share a four-point strategy that helps tame your biases during the mediation process.
The Dual Action
The technique is to repeat all actions directed at one party for the benefit of the other party. Duplicated action both ways, create an environment of fair play and equal opportunity for the parties. For instance, when passing on a message on phone to one party, let the party know about your intentions of contacting the other party on the same subject almost immediately through the same medium. Another example is when calling for private meetings. Be sure to repeat the request for a private meeting with the other party after the first, even if you do not necessarily need that meeting. I know this sounds too simple. I thought so too until a started using it and could not believe the results. The effect this has on the parties is to make them experience a balanced process. They always know they will get their turn and show more trust in the process as it progresses. In most cases, the success of the mediation process is hinged on this ‘trust’. Another very interesting observation is that parties become less apprehensive of the process and are more relaxed and cooperative during proceedings.
Use clear, simple and implementable ground rules. During the Pre-Mediation meeting for example, hand out proposed ground rules for the parties to comment and adopt if acceptable. These ground rules if accepted and signed by both parties would confirm their commitment to abide by them during the mediation process. The role of the mediator then would be to enforce as best and fairly as he can, the ground rules. This is tough sometimes, but if done well helps the process to run more smoothly and remain devoid of perceptions of bias on the part of the mediator. It is simple; the same rules apply to all parties in the process. And the Mediator acts as the referee who oversees the implementation. My observation has been that most often, parties would breach the ground rules they have consented to voluntarily. Therefore, skills for subtle ways of enforcement are needed by the mediator to ensure conformity. Remember, the process is still voluntary and parties are free to walk if they are dissatisfied. The ground rules act more like process guidelines for uniformity, direction and order and not strict statutes that are implementable by force.
Limiting ‘Problem’ Issues to Caucus
My rule of thumb is to test some specific thorny issues in caucus before bringing them out in the plenary (joint session). This way, I am sure what reactions to expect from each party in advance. This is a sure way of cushioning yourself against surprised reactions from parties in the mediation process.
Most often, mediators find themselves in a situation where they feel trapped between the parties. Anything said would seem to be against the other party or more favourable to them. Under such circumstances, one may want to call for a private meeting to test these issues which may be suggestions, thoughts, similar or connected case studies and the like. The question however may be, how do I recognize an issue I must test in caucus? Am sure this will differ from mediator to mediator but I believe the best way to know would be to trust your instincts (inner feelings of uneasiness). Or perhaps, you may notice it in the posture of one party as you begin to raise the issue. Whichever way it happens, be sure to test reactions in caucus before raising them in the joint session. The aim of a mediator would be to protect the process from collapsing as well as to protect the credibility of the mediator.
Dealing with Perception
Caucusing is absolutely one of the most powerful tools of mediation. And during the process, watch out for words and statements from parties that hint any negative perception. Such perceptions may be directed at the mediator, the other party or even the entire process and may come in diverse forms – as in expressing a worry, complaint, observation etc. Deal with such statements in caucaus affirmatively. Clarify issues as best as you can and assure the concerned party of your support and confidentiality. It is important that negative perception, no matter how indifferent or minute be taken seriously and handled with urgent necessity. The key to taming one’s own biases is to be in control of the process adequately and passionate enough to help the parties solve their problem.
Many challenges will come our way during the practice of this noble profession. Proactive action to stay above our challenges will make a great difference in our successes or failures. And no other person can best help tame our biases better than ourselves. Look deep inside of you and draw on all those lovely principles that have always made you the great mediator you are. In the end, mediation processes you handle will most of the time remain smooth, fair and rewarding for all stakeholders in the process.