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Neutrality is Better than DIY Conflict Resolution

I like do-it-yourself home improvement as much as the next person, but do-it-yourself conflict resolution is problematic. How has this become a thing, and why might it be bad?

In do-it-yourself conflict resolution, the interested party becomes their own police, judge, rule-maker, and mediator. Each of us should carry a weapon, and be our own enforcement power. Each of us should be a judge of what is best and what is true, and push to achieve our desired outcome. Each of us should have a lawyer to fight for our own rules and to protect against exposure to the public. Each of us should be our own mediator, and use mediation techniques to resolve our own conflicts. 

DIY conflict resolution is part of a downward spiral of distrust. We don’t want to get a third-party neutral involved because we don’t trust this person to treat us well. Because of the severe consequences of exposure – of getting “called out” for misstatements and misdeeds – we might be inclined to hide for as long as possible. With less engagement with neutrals, and more DIY conflict resolution, we have fewer and fewer day-to-day experiences with third parties or opportunities to build up trust with them.  

DIY conflict resolution then confirms our worst assumptions about other people. Participants in conflict are usually deeply upset, biased in ways that they are not recognizing, and too deeply “in the thick of it” to see the bigger picture. For those truly talented individuals who can calm themselves amidst the emotional storm, they still lack credibility with the opposing side. If you and I have opposing interests, and I say, “Well, I am in a calm and reasonable state-of-mind, and here is the best solution,” how likely are you to trust and believe me? A reasonable person might conclude, after avoiding neutrals and having repeated encounters with interested parties, it is safest not to trust anyone.

We ought to be comfortable with neutrals, if for no other reason than because neutrality is a concept baked into the aesthetics of the universe. An atom has protons and electrons, but it also needs neutrons. This is how things fit together. Similarly, the third-party neutral is key to the triad of rule of law. When party A and party B try to be the judge of their own causes, the fighting goes on forever. Distrust widens. The neutral C makes the whole, keeping A and B in a constructive tension.

There are a lot of neutral Cs of course, from international diplomats to judges to village elders. They are the unsung heroes of social stability. My interest here is in the neutrals who I think are most needed: professional third-party mediators. 

What’s neutral about a neutral third party?

Neutrality has fallen into disfavor lately. Many advocates seem to be of the belief that no one is neutral; rather, everyone is interested. The judge is not a referee but rather a political actor, with undeclared interests. There is a society-wide assault on neutrals and the idea of neutrality.

I agree that it is better to own my biases than to pretend that I don’t have any. But I do not agree that, by extension, a mediator ought to own up to being self-interested, or politically-motivated, and give up on neutrality. Rather, I think that the key to neutrality is in recognizing that the neutral is actually an advocate for the greater interests of the community. 

I am drawing here partly from a budding concept in environmental law, the idea of having someone who represents the interests of a river, or a forest, like a guardian ad litem for nature. The core idea – that neutrality is not a blank slate but rather a positive interest in some greater good – is based on a much deeper tradition. People in villages throughout history have recognized that angry and personally-interested people often escalate their fights with one another to the point that it does damage to everyone around them. The community has an interest in peace and so turns to a neutral third-party, often a village elder, to represent that peace, just like a guardian ad litem might represent a forest. 

The neutral does not just represent peace but actually serves to connect past and future generations. I will use an example from my own experience, the Njuri Ncheke council in Meru, Kenya. The Meru have a concept of continuity, of a thread that goes from previous generations of Meru through the living and on to unborn future generations. This is a tangible and palpable thing. A person in Meru can commit a wrong against the dead and against unborn future Meru people, and can feel the consequences of this wrong in the here and now.

To look out for the greater interest of the Meru community, some Meru turn to ritual leaders, the Njuri Ncheke, who are chosen from the community based on their reputation for having integrity and sense of calm (often coming from age). These ritual leaders are not just traditionalists, nor are they focused only on the future, but rather are steadying the boat, through the storms of the present, to keep faith with both past and future. A hot-tempered person is considered unsuited for this role. 

Mediators, in my mind, are not just impartial or multi-partial, but are representatives of the community’s interest in peace and in continuity from past to future generations. As a mediator, I have suffered through agonizing negotiations among parties whose animosity is doing damage to everyone surrounding them. At their best, bickering people are irritating for others. At their worst, they destroy others’ lives. I see the mediator’s ultimate role as the same as that of the Njuri in Meru – we do what we can to bring calm to a volatile situation and highlight sites for mending the mini-fissures in the social fabric.

DIY and mediator trainings

Basic mediation trainings are contributing to misunderstandings about neutrality and to the increase in DIY conflict resolution. People come to mediation trainings, learn valuable skills, and then are tempted to put them to work DIY-style in their lives. What is needed is a more rigorous understanding of neutrality and a more explicit test to tell the trainee when to stop and call in a professional mediator. Trainings should send a clear message: neutrals are needed in our day-to-day lives.

When talking about neutrality in training, the main concern seems to be that the mediator does not have a personal relationship with either of the parties, or some other kind of bias or appearance of bias. In dispute resolution in villages throughout history, however, the relationship of the neutral with the parties has actually been very important to making conflict resolution work. What matters, as I explained above, is whether the neutral has the community interest at heart, or in other words is biased in favor of peace and continuity. 

In mediation training, skills like good communication, summarization, reframing, and identifying underlying needs take precedence over relationship concerns like rapport-building, true neutrality (or community-bias), and personal integrity of the neutral. Because of this, someone with excellent mediator skills might go out and try to mediate everyone, without due regard to relationships and positionality.

Basic mediation training is of course useful for people in different jobs, for example for lawyers, health professionals, or teachers. For those who will be using mediator skills outside of a mediation session, however, the training ought to provide best practices for when to stop using mediator skills and defer to a professional mediator. In other words, there should be explicit limits on DIY mediation. If I am a nurse with an angry patient, or a boss with a disgruntled employee, at what point do I switch from using my own mediator skills to calling in a professional mediator?

The first step in this analysis, that ought to be part of basic mediation training, is to distinguish between the professional mediator in the mediation session and the amateur person using mediator skills. It is not the level of skill that is relevant but rather the situation. Are you doing intake or mediating in a mediation session or serving as an in-house professional neutral? If so, neutrality ought to be assumed, unless some reason is given. Or, are you doing another job like managing an office and putting mediator skills to use in the context of that job? If so, you are wearing the hat of an amateur (even if you are also a professional mediator) and must go through a process to establish your neutrality.

If you are an amateur, the second step is to ask yourself about your self-interests. Self-interest is not obvious, and will be less obvious in the thick of an emotion-laden conversation. I have first-hand experience of people with the highest level of mediator training not recognizing their own self-interestedness, and therefore not recognizing the need to stand down their mediator toolkit (which yes, can be used to serve your self-interest). The amateur needs to take a mini timeout for self-reflection before putting mediator skills to work. Can I credibly claim to be free of self-interest here? If not, do not use mediator skills to DIY an informal mediation session.

The third step, after deciding that you are not self-interested, is to discuss together with others in the conflict about whether anyone wants to call in a professional third-party. You have to say, I’ve thought about my interests here and feel good using some skills I learned in mediation training. Is that okay with you all? If people say, “no,” you have to accept “no” and bring in a professional mediator. The parties’ level of comfort with the neutral – their rapport with this person – is one of the most important bases for successful mediation. For this reason, sometimes an amateur will actually be better for a dispute than a professional mediator. But this can never be assumed, and can never be determined by the neutral themselves without consulting others. The people in the dispute should get the opportunity to discuss this. 

To give a simple example of this analysis, imagine a manager in a contentious meeting with staff, in which worker A accuses worker B of making an inappropriate comment. The manager happens to be a highly skilled mediator with years of experience. Is this a mediation session? No – it is an amateur situation, despite the manager’s skill in mediation. So the manager has to ask, what are my self-interests here? Do I like or identify with worker A, and want her to prevail over worker B? Do I have a stake in the outcome, aside from just keeping peace at the office? Let’s say the manager decides that they have no strong self-interest and feel that they are only interested in promoting the community interest. The manager then turns and says, I would like to use some mediation skills to address what is going on here between A and B. My interest is just to keep the peace and to foster a healthy work environment. Would you all like to do that? Or, would you all like to get an outside mediator to come in and help?

Mediators, hire your colleagues!

Lawyers hire other lawyers to represent them. Therapists go to other therapists. Mediators and folks with mediation training, we should all be using professional mediation services more frequently for our own disputes.

People do not use professional mediation enough, thinking that it is either inappropriate for small stuff, or not strong enough for big stuff. A party in mediation might say to the other party, “just come to me directly next time – it did not have to reach such a level that we had to get a mediator!” But my response is, no – mediation is meant for day-to-day friction, it is meant for small stuff, to prevent the small stuff from growing into big stuff. Mediation is to litigation as exercise and nutrition are to surgery. If you exercise and eat well, you will be less likely to need a strong intervention like surgery.

Mediation also ought to be restorative, or in other words geared to getting people onto the same page, absolving guilt, and mollifying feelings of injustice. People are afraid of neutral third parties, much in the same way that they are afraid of an authority calling them out for something they’ve said or done. This is one reason why mediators are so important. They can call people in. They can be weakly authoritative and approachable, reducing barriers for people who need more neutrality in their day-to-day lives but are afraid of outsiders being judgy.

So fellow mediators, do us all a favor! Train the amateurs, but also train them about when to call in a neutral third party. Do not encourage people to mediate their own disputes! And call a mediator for your own disputes – if you have faith in our profession, this is a great way to express it.

                        author

James Krueger

James is a trained mediator and lawyer with a long-standing interest in conflict resolution outside of the courts. He earned a J.D. from William and Mary School of Law and Ph.D from University of Wisconsin-Madison with a focus on legal pluralism. He is currently with Syringa Law and Mediation PLLC… MORE >

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