The Mediator’s Toolkit – Neutrality and the Mediator

Karen Ekstein, MBA, Ph.D. (author) assisted David Aschaiek with this article.

In two of my previous articles, competences that are valuable to mediators and to mediation have been discussed. In “The Mediator’s Toolkit: Cultural Competence – Transcending Culture Differences in Mediation,” it was suggested that cultural competence is a necessary skill for mediators to posses; it allows a mediator to understand the cultural differences that are present within a dispute and their implications for the dispute and its resolution. In “The Mediator’s Toolkit: Third Culture – Creating a Climate for Successful Mediation” discussion centred on the idea that for the success of mediation, mediators need to foster a climate – a third culture – that is separate from the disputants cultures and that is conducive to cross-cultural communications; this, as might be imagined, relies heavily on a mediator’s cultural competence.

In both of the articles highlighted above, it was suggested that a mediator’s cultural competence and ability to foster a third culture are important, if not necessary and critical ingredients for successful mediation. Successful mediation, within this article and previous articles, refers to arriving at a resolution to a dispute that optimizes the satisfaction of all parties within a dispute situation. Continuing with efforts of identifying tools for the mediator’s toolkit, this article explores the concept of neutrality as it applies to the mediator’s role.

In the case of mediation, neutrality applies to a mediator’s impartiality and refers to the idea that a mediator should not take sides in a dispute or voice an opinion about who is right or wrong in a dispute. Despite that it is critical for a mediator to be impartial, two items must first be noted. First, neutrality is not equivalent to passivity; that is, despite a mediator’s neutrality, he or she is absolutely not exempt from actively participating in a dispute resolution process. Second, it is essential to consider that mediators are people first and mediators second; that is, there is room for personal perspectives to inadvertently make their way into a mediation context and interfere with the neutrality of a mediator’s role.

Neutrality is not Passivity

There are a number of expressions in the English language that communicate neutrality. For instance, ‘sitting on the fence’, ‘wishy washy’ ‘to hem and haw’ ‘cop out’ might be familiar. The connotation, of such expressions, is that an individual, by being neutral, is non-committal and passive. Though neutrality may have an association with passivity in some instances, this is not the case with respect to a mediator and his or her professional responsibilities. That is to say that despite that neutrality is a central value within the mediation profession, the mediator is not only not a passive party in a dispute resolution process; rather, he or she is explicitly involved within the dispute resolution process by actively directing it.

To use a metaphor, a mediator is much like the conductor of an orchestra. A mediator may not privilege a particular instrument’s “voice,” but he or she does determine which notes each party will play. In a similar fashion, a mediator may not privilege the position or interests of a particular party in a dispute. An orchestra director orchestrates the flow of music, and determines which instruments will be played, when and whether they will be played loudly or quietly, alone or together. A mediator, through how he or she consults with parties and through questions he or she asks, through how he or she directs questioning and times questions has an active and direct influence on the pace and flow of the mediation process. Ultimately, voices in an orchestral performance would not come together in the way they do without a conductor to orchestrate. Much in the same way, a mediator affects how parties in a mediation come together and in what way; in this way, through the process of orchestrating a mediation, a mediator actively shapes the mediation process.

The previous discussion has served to further articulate the meaning of neutrality within the context of the mediation profession. Specifically, as discussed, neutrality is not equivalent to passivity in the context of mediation. Rather, though a mediator may be neutral in the sense that he or she does not have (or at least does not convey or share) his or her opinions about a mediation (and the parties involved in a mediation), he or she is an active participant in the mediation process. Further, as an active participant within and facilitator of the mediation process, a mediator shapes the mediation and thus, has the power and potential to influence outcomes of a dispute resolution process. The mediator has a responsibility, therefore, to be conscious of the power implicit to their role in the mediation context.

Neutrality and Accidental Bias

The previous discussion centred on the idea that though neutrality often suggests passivity, a mediator is not passive in the dispute resolution process. Specifically, it was suggested that a mediator is much like an orchestra conductor – a conductor may not privilege any particular voice, note or instrument, but through his or her choices and guidance, he or she actively shapes the performance. Similarly, though a mediator may not privilege the voice of a particular disputant, through his or her choices and facilitation, he or she actively shapes a mediation and its outcomes. If so, then the mediator must especially be alert to how his or her own (often subconscious) attitudes and beliefs can inadvertently bias the mediation process and compromise his or her neutrality.

A mediator is a human being first and a mediator second, so it is understandable that human characteristics will seep into the mediator’s professional persona. To be clear, bias is not necessarily introduced out of a mediator’s malice or ill-intent, and may not be harmful to the mediation process. Yet, as a conductor introduces his or her ‘biases’ or ‘preferences’ into a composition through shaping performance of a composition, a mediator is in a position to introduce bias into a mediation process through shaping the mediation process. Thus, it is part of a mediator’s responsibility to become explicitly aware and considerate of this aspect and potential of their role in the mediation process. In so doing, it might be noted that there are at least two ways in which a mediator inadvertently introduce biases into the mediation process and these are not necessarily mutually exclusive. First, a mediator may introduce bias into a mediation process due to his or her personal experience. Second, a mediator may introduce biases into the mediation process based on his or her reactions to the parties involved in the dispute.

Influences of Experience

As has been suggested in this article, a mediator is a human being first and a mediator second. Much like any other professional, a mediator’s personal experiences will affect his or her professional beliefs, attitudes and behaviours, on a subconscious level at the very least. In effect, in the event that a mediator or someone close to him or her was laid off by an employer, went through a divorce or was the victim of fraud or a contract violation, the experience and its outcomes will contribute to the view a mediator has of the dispute, the dispute resolution process and even the parties in a dispute. While a mediator’s ‘reaction’ to his or her experience is a human one, it is one that can bias the dispute resolution process. In effect, it is a mediator’s responsibility to explicitly examine his or her behaviour before, after and during a mediation process. And, it is within the process of reflective practice that a mediator identifies whether and how his or her experiences shape his or her perspectives and actions as a mediator. 

Influences of Perception

In line with the idea that a mediator is a human being first and a mediator second, he or she is also vulnerable to interpersonal effects. Mediators’ perceptions of the parties involved in a mediation can have implications for how decisions are consciously or unconsciously made around facilitation of a mediation process. For example, if a party in a dispute reminds the mediator of an individual that he or she knows, this can have implications for a mediator’s choices. Further, a mediator is not immune to perceiving and interpreting the verbal and non-verbal cues transmitted by parties in a dispute. For example, if a mediator recognizes and feels that parties pursuing mediation are only doing so because they are mandated to do so, they will be especially sensitive to cues regarding parties’ commitment to successful resolution of the mediation. If a mediator identifies that there is a power imbalance among the parties in a dispute, or that one party is more forthright than the other, then this can also influence how he or she proceeds with facilitating the mediation process. And finally, in the case that a mediator instinctively distrusts or dislikes one of the disputing parties, his or her feelings may inadvertently affect aspects of the mediation process.

Regardless of how the mediator’s personal perceptions influence the mediation process, it is integral that the mediator demonstrates responsibility in his or her role as a mediator. Apart from ensuring his or her own safety in the mediation process (and that of the parties in the process), his or her number one priority is to the fair facilitation of the mediation process with the intent of achieving an optimal outcome for all disputing parties.

The Value of Reflective Practice

Reflective practice is recommended for all types of professionals; it is enormously important for professional growth because it involves committed efforts to take time and think about oneself in his or her professional capacity. To be more precise, it is not only about assessing one’s professional performance, but rather, it is about thinking deeply and objectively about one’s personal and professional selves independently and in interaction.

Reflective practice need not be retrospective, though at times it can offer perspective that is difficult to achieve when ‘in the weeds’. In fact, it is deemed worthwhile for professionals to think about their practice reflectively as they engage in their professional lives.

Part of reflective practice involves understanding how one’s personal thoughts, feelings and actions are presented professionally and have implications for professional practice. In the case of mediation, this would involve a mediator seeking to explicitly and non-defensively understand the threats to his or her neutrality. It is this awareness that is the first and most necessary step for a mediator to prevent biases from entering into the mediation context in a way that could compromise the integrity of the mediation process.

While it certainly requires a time commitment and a level of self-evaluation that might sometimes be uncomfortable, the benefits of reflective practice for a mediator are twofold. First, by controlling the inadvertent insertion of bias into the mediation process, reflective process protects the integrity of the mediation process, which serves the parties involved in a mediation as well as the mediator his or herself. In some cases, it might lead the mediator to realize that it would be prudent to opt out of the mediation altogether. Second, reflective process contributes to learning – it makes a mediator better at what he or she does…and let’s face it…did a little learning ever hurt anyone?

                       

Dave Aschaiek

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