The Myth of Mediation Neutrality – book excerpt

The traditional view is that a mediator is a neutral, third party who helps two or more conflicting parties cooperatively resolve their differences.  The implication has always been that the mediator—as professional—makes judgments and decisions by analyzing the case before him in a dispassionate, uninvolved way.  Interestingly enough, this belief is analogous to the Cartesian-Newtonian epistemological position that holds that one can be an independent observer of an objective world, in science or in daily life.  More practically, this has also been the clinical view in most contemporary psychotherapy and psychoanalysis.  (See my Essays on Phenomenology and the Self, Essay One). 1  However, I am skeptical about this position, both epistemologically and clinically.  What remains an open question is whether a mediator can actually ever be a “neutral third.”  There are derivative questions, as well, including the implications for mediation practice in general, should we discover that the notion of neutrality is a convenient fiction, an ideological myth that covers deeper realities.2

Let us consider that the personality of the mediator—her moods, styles, communications, and non-verbal indicators—may actually influence the thoughts, feelings, and behaviors of the conflicting parties in a mediation encounter.  Let us consider that these processes might be largely unconscious.  If this is the case, then what appears to be happening in mediation, a so-called objective, neutral (and because of that, fair) process is not actually happening at all. In this case, the process is nothing more than Shakespearean theatre—a cipher with multiple interpretations and distortions.

A related problem involves the potential lack of knowledge of the mediator about the disputing parties.  If the mediator has worked with both parties on an ongoing and long-term basis, the mediator could theoretically become aware of what is pervasive in each party’s makeup, manifesting in a broad spectrum of relations; in combination with the mediator’s own self awareness, this could potentially create a framework for an analytic process.  Nevertheless, in many if not most mediation contexts, the mediator knows very little about the parties except for superficial information about the nature of the dispute and perhaps some facts about the parties themselves.  This lack, in my judgment, prevents the sort of dialectical awareness that comes from an analytic framework from emerging.  In that case, the mediator is left to his or her own intuitions which, as any analyst knows, are narcissistic in nature and which preclude a reasonable, fair, and analytic process—in various degrees depending upon the level of distortion. 3

More particularly, what a disputing party chooses to speak of, or how she chooses to frame her position or needs—I believe—is partly influenced by the presence and behavior of the second/other disputant as well as the mediator. 4 If we substitute in a different mediator, we consequently substitute in a different range of characteristics and behavior.  That is, quite different events, issues, moods, and self-problematics will emerge with different mediators.  I take it as obvious that these variations of a disputant’s self-structure (this notion, by the way, is postmodern in character and much anti-Cartesian) can affect at a crucial level the process that occurs.  Without knowledge of these different self-structures and without the benefit of a resulting analytic framework, the process could be arbitrary even though it appears fair and neutral.  Moreover, mediators who play the role of a neutral third party by engaging in the requisite behaviors actually influence the parties in ways of which they are unaware.  Again, this results in a convenient ideology that serves no one. 

The truth of the matter is that each disputing party reacts differently—in unconscious ways—to the (deceptive) role of a professional who tries to be an “independent and neutral” mediator. 5  What I propose is a new and different way of viewing mediation.  Instead of the belief that a mediator can be neutral and can understand the conflicting parties objectively, I propose that the mediator cannot theoretically ever be neutral.  In the alternative, we could interpret mediation as a situation involving the complex self-systems of all three (or more) participants, including the mediator—with both conscious and unconscious elements of all at play.  In principle, this jeopardizes the regulative ideal of that neutrality and replaces it with a more complex system but one that more accurately describes and captures the phenomenon of mediation. 6 

In this weltanschauung the parties work together with the active participation of a mediator who is unable to be neutral for a number of reasons that can be explained psychoanalytically.  I believe that what is required in its place is critical dialogue and, more seriously, a dialectic that allows us to engage these unconscious cyclical elements consciously.  There is much work to do in developing a prolegomena to such an analytic, but it starts with a (Heideggarian) ontological focus and Hegelian dialectic—a critical discourse. 7  I will address these notions as well proceed into the methodology, keeping in mind that extensive research ought to be done on them in the future.  What’s important is my argument that if we acknowledge what is really going on in mediation (at a deep social-ontological level 8), we can begin to develop theory and practice in such a way that will elevate its standards both practically and ethically.

Let us continue to explore a psychoanalytic approach.  The classical analytic approach assumes an unconscious, and the existential phenomenological does not.  (See my Essays on Phenomenology and the Self, Essay One).  However, although they are radically different philosophies of mind on the surface, they both share the binary distinction between a) awareness and b) lack of awareness (albeit with different terms).  They are also convergent in that they purport to identify and examine transcendent and immanent structures that affect self-construction and sociality. 9

At the outset, I ask the reader to consider these different philosophies of mind, especially as they bear on professional practice differently.  Perhaps we will see that each approach offers valuable insight into the orientation and methods of the practitioner in the professional encounter.  The hope is to broaden and deepen perspective in order to enhance ethical and pragmatic sensibility.  To this end, I have constructed, clinically and theoretically, two different psychoanalytic models, which I call “Model A,” which is the existential psychoanalytic approach and “Model B,” which is the classical psychoanalytic approach, in which there are three variations.  There is also a rudimentary analysis of some of the considerations of a “Model C,” which is the linguistic-structural approach.  I will also present chapters on it. 10

Let’s first engage in a preparatory analysis by engaging in a deconstruction of the Cartesian position and its practical correlative, which assumes the possibility of a “neutral” third party in mediation–derivative isomorphic analyses follow in other, later segments (see Descartes’ Meditations on First Philosophy). 11   Later, I will demonstrate how it is the powerful machinery of phenomenology that we will bring to bear on the problem of the detached, neutral observer of phenomena.  The idea of a neutral observer is the modernist idea that in all scientific inquiry there is a radical split between subject and object.  This assumption leads to the position that an impersonal observer could, with the right kind of methodology, discover the truth about the nature of reality, both natural and social.  In contrast, however, the phenomenological approach holds that no subject “knower” can fairly exclude herself from the [objective?] phenomenon that he is perceiving and studying.  In this position, there is no radical split between subject and object and therefore no way to ever obtain objective, detached truth about the nature of the universe.  Instead, our goal would be to interrogate and understand the contents of the consciousness of the mediator, and the parties.  In practice, it means to effects of the unconscious that we must excavate or illuminate.

For the phenomenologist, any knower [human investigator] is always already embedded in a complex of interrelationships with the natural, spiritual, social, and internal world.  In short, the very act of inquiry affects the subject knower in ways that are difficult if not impossible to discern.  Furthermore, investigative behavior has additional effects on the object of the investigation as well as on other subjects involved in the inquiry.  Unfortunately, Descartes’s test of “clearness and distinctness” fails under this sort of rigorous phenomenological reassessment of the foundations of scientific inquiry.  (See a good history of philosophy such as The Routledge History of Philosophy for summary comments about modernism and Descartes’s contributions to it.)

It is through the work of Brentano, Husserl, and Heidegger that we begin to disabuse ourselves of the Cartesian position by realizing that the arbitrary subject-object derivative is a distortion of our more primary being-in-the-world, which is a concept that tries to explain our complex, embedded nature.  (See my Essays on Phenomenology and the Self).  Let us then focus on the nature of the problem again, at the risk of repetitiveness: The received view of mediation is that it can actually be a fair process if the mediator is neutral and certain structures and procedures are in place.  Phenomenology suggests, in principle [and in part], that because the radical subject-object split is an illusion, the mediator cannot possibly ever truly be neutral.  I am asserting more than the usual commentary about bias, prejudice, and the like.  I am propounding that there is a deeper level—the ontological—at which neutrality is theoretically impossible.  Viewed in this way, we understand that any reflected judgment about any social phenomena, including mediation with two disputing parties, always arises out of elements of relatedness and less-than-conscious conditions.   As such, we can never understand other human beings except in terms of our own, and their relational context.  Instead of pursuing questions about “truth” and the “right,” we can shift our inquiry to the contents of consciousness of the mediation participants.  We can also look for ways to discern to bring the unconscious to awareness.  In short, we can disentangle some of this embeddedness; for that which we cannot disentangle, we can work within it.

This notion of relatedness includes ideas that subjectivity itself arises out of relational context, that whatever we think we perceive is always a process of relation; there is never just a foundational perceiving subjectivity that perceives an independent object. 12  They are together as part of a process.  Second, there is the notion that an individual consciousness—a perceiver—is always a part of a larger framework of related consciousnesses, i.e., other individuals.  There is, therefore, no such thing as atomic individualism [Descartes’s proto-foundationalist view].  Third, and perhaps the most scintillating and useful concept, is that all individuals in a relational field, i.e., mediation, are co-responsible for its effects.  This leads to the discourse of inter-relationalism, which I will build on in future segments of this model.  This is part of the existential psychoanalytic model that I have been constructing which, I believe, has useful applications in cooperative conflict resolution practice such as mediation and collaborative divorce law processes.  It also figures prominently on one variation of classical psychoanalytic theory.  I will develop these ideas further in the text that follows.

                       

Kevin Boileau

Kevin Boileau is a Managing Partner at the mediation and negotiation firm of Boileau Conflict Solutions.  He is Interim Director at the BCS Dispute Resolution Institute and both Executive Director and Professor at the Existential Psychoanalytic Institute.  He is also Professor of Psychoanalysis and Critical Theory at the Global Center… MORE >