As citizens in the world, we are used to drawing conclusions from facts we see and hear around us. When we act as mediators, however, it is desirable that we avoid forming firm opinions as the mediation story unfolds. This allows the parties the liberty to see their disagreement in their own way free of the particular views of the mediator. Mediators who cogitate on their basic beliefs regarding self-determination and who work at improving their neutrality regarding the issues in a case, can avoid having opinions regarding the dispute solidify in their minds. In order to truly maintain neutrality throughout a mediation case, a mediator must first “buy in” to certain underlying beliefs. These are fundamental tenets and most of them will sound familiar to mediators. Without these beliefs, the mediator is drawn into the conflict and is persuaded by some of what he hears. When that happens, the mediator may no longer be providing the service of helping the parties come to a resolution of their own choosing, but may risk — subconsciously or overtly — pushing the parties toward a resolution of the mediator’s choosing. I suggest that the following are the basic beliefs of a neutral mediator:
Because gossip is a common social practice, however, we are accustomed to believing that it is normal and expected that we form opinions about the decisions that others make. Perhaps this is not necessarily the case, however, and that as mediators we have the opportunity to follow our better instincts.
Commonly, during a mediation session, one of the participants will present his case convincingly, charmingly, thoroughly. The other, however, may not possess the skills, the confidence, or the ability to do so. Some individuals who may normally be articulate feel a loss of confidence and an inability to communicate clearly when in the presence of his spouse. Or, the enormity of the circumstances, and the complexity of the issues and emotions make it difficult for one of the parties to formulate thoughts clearly. Some mediators may be tempted to be drawn into the story of the articulate participant; may be tempted to lose neutrality, to believe that they have heard all there is to hear, to make judgments, have an opinion about the outcome. Rather than do so, however, the mediator should remind himself (or indeed, over time and with practice, this should happen automatically) that the mediator does not have all the facts from which to draw a conclusion, that the mediator does not know enough about the participants’ situation, and that few matters are capable of being labeled right or wrong.
Rather than fall into the trap of losing neutrality, the mediator can view the individual’s failure to convey his or her story convincingly as an opportunity to help each person clarify his or her concerns and the concerns of the other. Perhaps the participant’s failure to speak convincingly in the presence of the other is one of the reasons the matter did not resolve prior to mediation, or indeed, one of the reasons the relationship failed. The most pressing need – for the sake of both parties – may be to help the person who is being less articulate express his concerns more fully. It is to the advantage of both parties that all concerns are understood clearly. Without that, the two participants can not each feel that their concerns are considered and can not feel comfortable coming to an agreement.
It is, indeed, a central part of the mediator’s role to help each individual convey his thoughts and perspectives clearly and thoroughly. Part of the mediator’s skill set, in fact, should be the ability to pinpoint the parts of a participant’s presentation that need clarification and elaboration. Doing so does not imply a lack of neutrality. In fact, it is central to mediation and neutrality. Pointing out gaps in logic in a party’s spoken narrative does not favor either party. The speaking party gains from this observation by being able to fill in the missing gap, clarify a misconception, or recognize his flawed logic. The party listening benefits by having a clearer picture of the other party’s concerns and by having the other party become more rational in his thinking as a result of the observation.
The neutral mediator is able to help the parties present their concerns in the clearest, most well thought-through and most convincing way possible because he gives the parties the respect of assuming that their positions are based on their honest, good faith beliefs, that they want to be clear and rational, and that they have valid perspectives. When there is bad faith involved on the part of a party, the mediator’s push for greater clarity may very well expose an inconsistent perspective or flawed logic on the part of the party. With these beliefs in mind, the neutral mediator is comfortable helping parties clarify, examine and elaborate on their concerns without fearing that he will appear to lack neutrality.
It was a hot Friday afternoon in Miami, and everyone but the mediator had a flight to catch. The lawyers on the other side knew what they were doing, but...By John DeGroote