Globally, as waves of nationalism and existentialism begin to unsettle democratic institutions, as ideologies driven by hatred conspire to digitally divide millions, as 8 billion people are instigated to talk more and listen less – dialogue remains relevant and mediators are valued more than ever. In order to facilitate dialogue between polarised perspectives, mediators are expected to present themselves as physically, emotionally and intellectually equidistant from either disputant in the mediation, with many scholars advocating for immaculate standards of passive participation. In the current context, is neutrality as relevant as impartiality?
Mediator neutrality has been contentiously debated for years, with multiple attempts to bust myths and expose realities. Does a mediator’s tweet on abortion rights matter to a couple disputing child custody? Does a mediator’s Instagram picture with a couple of friends at a pub matter to two business partners in dispute – where one of them believes that drinking is a sin? Does the Mediator’s prior acquaintance with the ‘Inviting Party’ on LinkedIn really bother the ‘Responding Party’?
There is no practical evidence or objective criteria to confirm the above speculations, leaving us with no concrete analysis of the impact of a mediator having an active social life, where political or religious beliefs are expressed publicly. As inhabitants of a free world, and proponents of safe spaces for dialogue, shouldn’t mediators have the liberty to genuinely demonstrate their true endorsement of value systems of the societies they live and operate in? Curiously, shouldn’t the individual facilitating the consensus of perspectives be an open book on his or her perspectives?
Perspectives are nurtured – An illustration
A news story flashes on TV – a mob in India murders a man in broad day light on a busy street because he was in possession of some meat he had purchased from the butcher. At home, a family watches. The father selects what he wants to draw from the news telecast. This selection is guided by his sub-conscious; he then interprets the selected part of the event and concludes: “That man deserved it, he should respect the culture!” His daughter is seated right next to him watching the same news report. She selects what she wants out of it, again guided by her subconscious, interprets it in a different way, and concludes differently: “How can a man be killed for his choice of food?” Or “The mob murdered him, the mob should respect the law!”
Remember, the above two conclusions stem from members of the same family, which means same bloodline, caste, class, religion and whatever else that divides our race. These extreme perspectives are influenced by their respective experiences. They have viewed the same event through different filters. These filters are defined by different sets of values and ideologies, beliefs inherited and acquired, their experience to different cultures, the kind of education they have had and the childhood experiences they have been through, including those which they are unable to articulate as they had encountered them at a time when they had not learned to speak. People are not born with perspectives they are nurtured.
A mediator’s perspective – does it matter?
Some of us are conscious of our biases, but most others are unaware of these predispositions rooted in our sub-conscious. Mediators are no exception. Mediators who believe to possess some kind of superhuman, higher level of immortal neutrality are only misrepresenting themselves to society. Mediators who claim that they can walk into a mediation with a clean slate are kidding themselves. “Mediators acquire no waiver of exception from standard bias merely because they constantly profess their role to be professionally neutral, non-judgmental,” writes Robert Benjamin
Mediators, like most human beings, have strong moral, ideological or religious values and unconscious biases. Whether publicly expressed or not, mediators privately hold views on social issues, have political leanings, possess religious beliefs and have their own ideas of social, cultural and religious morality. Therefore, the question is – does it only become a conflict of interest, if expressed? Does a mediator lose her neutrality only by speaking up on a social issue? If so, shouldn’t it concern parties and lawyers in understanding the mind of their mediator who hasn’t published her perspectives on matters related to their issue? Practically, shouldn’t parties and lawyers gather from the mediator her opinion on “nationalism” before they appoint her to mediate a workplace dispute which originated from a racial slur?
For those of us who subscribe to Bush and Folger’s suggestion that mediation can advance social justice, the natural corollary would be that mediators are allowed to express their views on issues relating to social justice, in relation to events outside mediation. With many mediators reflecting on matters such as ‘Black Lives Matter’, the climate crisis, “Me Too” movements and so on, the authors ask – should mediators in Asia follow suit and take a stand on racial, gender and religious discrimination? Are we meant to use our social media presence only to announce our achievements or market our conferences, trainings and services? Or does society expect us to speak out on matters that affect the community we live in?
Mediators, who choose to stay silent on matters of violence, hatred and discrimination run the risk of being branded as “mute spectators” to social inequities. When one of the authors shared a webinar listing recently among his WhatsApp connections, an acquaintance commented, “You mediators are spineless beings”. A stray remark, but an allegation worth pondering upon. Those championing human rights might soon start looking down on a mediator’s indifferent participation on social issues, despite our claims of “neutrality”.
The authors encourage the emergence of a politically-active mediator. It’s time to address the elephant in the room and Ken Cloke helps us do that, “It should not, I think, be necessary to surrender one’s political ideas, beliefs, values, ethics and morality in order to mediate or facilitate dialogues between people with opposing views. Being “neutral” in these conversations should not mean surrendering the freedom to think or have an opinion on important political issues. Otherwise, we capitulate to bullying, blackmail and intimidation.”
With access to social media, parties and lawyers can understand the mind-set of a mediator through their writings, talks, interactions. In appointing a mediator, besides assessing professional credentials, disputants and their lawyers often study the mediators’ social background – to ensure no compromise on neutrality. For instance, a mediator who is deeply religious may find it incompatible with his religious beliefs to facilitate a dispute concerning a gay relationship; or a mediator who grew up in a radically patriarchal ecosystem may not understand the idea of gender equality; or a mediator who is brought up in an environment of caste, religious or racial discrimination may not find such intolerance unnatural – and fail to recognize power imbalances at the table.
However, it would be unwise to assume any of the above handicaps or generalise personality traits by categorizing mediators based on their backgrounds. And, therefore, mediators must be encouraged to express themselves publicly so parties get to know the face behind a resume. This would help weed out “High Conflict Personalities”, as described by Bill Eddy in his book, “Trump Bubbles”. These personalities may instigate attitudes of “us” versus “them” during their public social discourse, polarising society instead of promoting the freedom to dialogue and dissent. On that note, a poignant, quite divisive, question being debated in certain circles is: Do mediation training institutes have the moral responsibility and ethical obligation to identity such ‘High Conflict Personalities’ and refuse to certify them by using objective criteria? Or must the profession risk the reputation of hundreds of mediators by letting “market forces” naturally distinguish between “fit” and “misfit” mediators?
Practice and Preach
Conclusively, the authors endorse the more practical practice of impartiality as compared to the more academic concept of neutrality. The authors support a mediator’s freedom to express an opinion on a public issue, but call for prudence and discernment in drawing the line on how this opinion influences their mediation work. The essence of mediation is self-determination, and a mediator, being a non-adjudicating neutral, cannot advise or direct the parties. If the mediator has a strong opinion, which cannot be kept at bay, the mediator must ethically declare conflict of interest and withdraw from the mediation. What are the chances that when faced with the prospect of extreme ideologies in the room, the mediator’s unconscious biases sway him or her to side with the party, with whom their beliefs align? Professional mediators identify their biased behaviours and explore the cause of it. A reflective mediator regularly conducts reality checks on himself to determine whether he is being guided by his unconscious bias into saying or doing something that will prejudice the session.
Stepping away from themselves and exploring perspectives with disputing parties, a good mediator may use these two techniques – Enquire and Introspect. Employing ‘enquiry’, a mediator invites parties to casually express their opinions – How do you feel about the conflict? or What is your view on their position about the same situation? Having got the parties to speak, the mediator may guide them to self-introspect: Why do you think the other side doesn’t agree with you? What are the chances that you both might have common interests? What could have happened that have led you both to think extremely about the same situation? What factors do you feel influence your views and their views? Why would you think you can’t be wrong? The whole exercise needs a lot of patience and diligence, therefore the above script is only illustrative and not exhaustive.
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