The February, 2001 draft of the proposed Uniform Mediation Act defines mediation as a process in which a mediator facilitates communication and negotiation between parties to assist them in reaching a voluntary agreement regarding their dispute. The words neutral and/or impartial have been excised, as has reference to “an open mind” in the conduct of the process. What are some implications of these excisions for the mediator and the mediation process?
Below three viewpoints are included, that of this author, ethics chairperson, Washington Mediation Association (WMA), former chair SPIDR ethics committee and member of the joint committee drafting the Model Standards of Conduct for Mediators (1994), that of Nicholas Wagner, attorney, member of the ADR Section of the Washington State Bar Association and frequent presenter on the subject of the UMA, and Cris Currie, President of the Washington Mediation Association, teacher and commentator on ADR issues. All three viewpoints are those of the individual authors.
Writing to delegates and drafters of the UMA and to those persons interested in the mediation process in professional and client capacities in February 2001:
I am writing to you concerning the new proposed definition of mediation in the February 2001 draft of the Uniform Mediation Act, which does not include a requirement of impartiality. I believe this omission results in a loss of an essential characteristic and core value of the mediation process, and fundamentally changes the role of mediators in dispute resolution.
I have been a mediation practitioner, teacher and theorist for nineteen years. In these capacities, my conception of myself as mediator and of the mediation process is: impartial, open and even-minded. Often the word “neutral” has served to identify this role and process, however, the concept of impartiality is more descriptive of a desirable mindset for the mediator and for the conduct of the process.
Identifying the mediation process and myself as impartial expresses an aspiration as to role and process. It does not necessarily describe my personal attitudes or beliefs about the subject of an issue to be negotiated, nor should it. The description of impartiality informs mediation clients and the mediator of a distinct way of ‘being’ and functioning while engaged in a negotiation effort. Clients see and understand this intent as promise of fairness, an opportunity for open disclosure, with their vulnerability protected, before an unbiased person whose sole role is to facilitate resolution. Impartiality as an interpersonal and relational quality in mediation needs to be understood by all at the outset, during the process, and ideally, confirmed at closure. This understanding, whether parties reach full, partial or even no agreements, speaks to participation in a respectful process that offers opportunity to negotiate resolution.
There have been few misunderstandings about the role and process in which I engage. People know what I mean when I define myself and the process as impartial. They also are not naive and know that neither they, nor I are perfect –perfectly impartial, even-handed, even-minded, open-minded or “fair” in all regards. Yet, imperfection notwithstanding, were I to stand up and say to clients, “I am a mediator. However, I am not impartial, even-handed or open-minded, ” they rightfully would think they came to the wrong place.
To not declare oneself impartial, and similarly not declare oneself the opposite is disingenuous and unprincipled. What if clients do not ask what it means for me not to be impartial? Very possibly they may not have the presumption to ask, “Who are you, and on whose side are you? How alarmed will they be to learn, perhaps after I have pushed them to give up on certain claims or demands, that I may be more beholden to one side of the dispute? Or, that my role as “facilitator” may be to facilitate one side’s triumph over the other, as opposed to facilitating resolution according to whatever terms the parties together agree are appropriate? And what is the value of a mediator who is not impartial? Does he or she just become another opponent, another lawyer, another advocate? What happens to the mediation process when it becomes just an extension of litigation? If this has not already happened, it certainly will happen if there is not even the expectation of mediator impartiality. In the end, the weak boundaries of the present definition invite opportunism by persons who seek to turn the mediation process into a litigation forum, as opposed to a negotiation process where, by virtue of its essential impartiality, the dignity and respect of all parties to the dispute are upheld.
Silence in respect to moral stance in the definition of mediation destroys the identity of the mediator and the mediation process. While provisions elsewhere in the UMA for confidentiality and no known conflict of interest have merit, these requirements do not accomplish the same salutary purpose as impartiality. Impartiality guarantees fairness and equal treatment. Requiring confidentiality and declaration of any known conflict of interest does not. These tenets are aspects of a mediation process defined by the imprimatur of impartiality and even-mindedness.
I encourage you not to create, nor offer in these United States, a Uniform Mediation Act based on a flawed definition of mediation. Mediation is a practice governed by a process ethic, the heart and mind of which is impartiality. I urge you to define the process accordingly and amend the definition in the February 2001 draft stated on page 2 (3), lines 6-8 with the following as noted in Italics:
“Mediation” means an impartial process in which a mediator facilitates with an open mind communication and negotiation between parties to assist them in reaching a voluntary agreement regarding their dispute.”
Our Section opposed adding the term “impartial” to the definition of “mediator” because “it is unnecessary and could be problematical (e.g., it might not become evident until part way through the mediation that the mediator was not impartial, and only then would the parties learn that the mediation was, by definition, beyond the scope of the UMA).” This is not to say that the concept of mediator impartiality should be excluded entirely from the UMA. I think it goes without saying that impartiality in a mediator is desirable, and perhaps there should be a requirement of mediator impartiality except in situations where all parties agree otherwise during the mediator selection process, especially in mediations where a party does not have veto power over the selection of the mediator. Such a requirement should not, in my opinion, be put into the definition of “mediator” or “mediation,” however, since that would serve only to define the problem out of existence (by allowing the mediation to proceed, only outside the scope of the UMA), without solving the problem Even if the UMA were to contain an affirmative requirement of mediator “impartiality,” I think it might be toothless without a specific definition of the grounds for mediator disqualification (e.g., an economic or personal interest in the outcome or a pre-existing relationship with one of the parties), which I think is really what we are talking about here. Moreover, a requirement of “impartiality” might not go far enough, since it does not address the need for an “appearance of impartiality,” which may be almost as important in maintaining the integrity of the mediation process.
A controversial element has concerned the Act’s definition of mediation. It is currently defined as “a process in which a mediator facilitates communication and negotiation between parties to assist them in reaching a voluntary agreement regarding their dispute.” A mediator is “an individual of any profession or background who conducts a mediation.” The use of the words “neutral” or “impartial” were struck from earlier drafts so that the confidentiality privilege would remain intact even if it were later discovered that the mediator had a conflict of interest. Mediators are required under the Act to disclose possible conflicts of interest before accepting mediation. Additionally, the application of the Act is to include the fostering of “informed self-determination by the parties,” and “the policy that the decision-making authority in the mediation process rests with the parties.”
The ADR Section (of the Washington State Bar) wanted the words impartial and neutral removed from the definitions so the privilege will survive even if the mediator is later found to have a conflict of interest or to have failed to serve with impartiality. Section 2 now speaks to active party involvement and informed self-determination by the parties. I don’t see any major problems with this.
I agree with many who have written on the subject that the word neutral should not be included in a mediation definition because it is impossible to be neutral, it’s not necessary to be neutral and therefore an irrelevant issue, and it would be very difficult to prove that a mediator was or was not neutral.
The word impartial is not much better. What matters is the extent to which the mediator’s opinions dictate the course of the mediation, not whether the mediator has opinions. And that is a matter of establishing an appropriate climate. The Act requires that mediators disclose any possible conflicts of interest, and that should be sufficient for a minimum standard. At this point, since ACR and IAM have essentially OK’d the current draft, I don’t see a need for WMA to spend time on it. Do you?
The intent of the Open Letter is to widen and deepen discussion concerning a change in the definition of mediation. The author reasons that the possible effects of the proposed change include loss of core mediator and process identity with concomitant loss of credibility. With the drafting process nearing completion, the author urges that action be taken now to reinstate “impartiality” and an “open-minded” process in the definition. The second viewpoint, that of Nicholas Wagner, argues for not stating what some determine to be unnecessary and possibly problematical, namely the guideline of impartiality, which, if included, would exclude some processes to which the act might apply. He notes that the act includes elsewhere governance regarding conflict of interest. The third viewpoint, that of Cris Currie, remarks upon the impossibility of being neutral or impartial and the possible time wasted to proceed further with an “an irrelevant issue.” Confidentiality is put forward as a more salient concern.
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