The Next Level of Impartiality

Institute for the Study of Conflict Transformation by
Dan Simon

All mediators understand that we’re supposed to be impartial.  Our ideas about what that means fall on a continuum.  On one extreme, it means only that we don’t have a pre-mediation bias in favor one party over the other.  On that extreme, we may decide during the mediation that it’s ok to help one party, more than the other, to understand the merits of the other party’s position.  That is, we may find one party to be more reasonable or more realistic than the other.  We imagine that we have objectively determined that one party is more right than the other.  In that context, it seems to some of us that it’s our obligation to share that detached, objective view of reality, as a way of educating the parties and helping move them toward a reasonable resolution.

Many mediators who practice this way would not even call their approach evaluative, since it feels to them that they aren’t making any sort of judgment, but are merely notifying the parties about some aspect of reality.  Maybe we believe we are merely sharing some relevant legal information, not in a biased way, but merely in a way that’s intended to educate both parties, so they can make more-informed choices. “Damages for pain and suffering are not available in breach of contract cases.”  That sort of thing.

On the other extreme of the continuum, the above attitude strikes us as the very definition of bias.  We believe that objectivity is not possible and that any time we share our view of reality with the parties, we are injecting bias improperly.  On this side of the continuum we further believe that it is not our place to view any particular outcome as more desirable than another.  The definition of progress, along with any other aspect of the process, is up to the parties.   On this end of the continuum, we wrestle with our awareness that any intervention, or even any non-intervention, arises partially from our biases and inevitably has a non-impartial influence on the parties and the situation.

We on this end of the continuum do our best to stay as aware as possible of our own motivations and of our impact on the parties.  Since we always have an agenda, the best we can do is to be transparent about it and to do our best to act consistently with only that agenda.  The transformative framework provides an agenda which, though it is a bias, seems to us to do the least harm. That bias is to focus exclusively on supporting party self-determination.

While that is still an agenda, a bias, a lack of neutrality, it is something we’ve decided is consistent with our role as mediator.  It is not perfectly impartial – our efforts will affect each party differently. It is not neutral.  And we have not achieved perfection in our attempts to be purely supportive.  When I reflect what a party has said, even though my intention is to provide an accurate, pure, no-spin reflection, it will always be flawed.  It will contain biases of mine that I’m not even aware of.  But, as far as I know, this is the closest I can come to impartiality.

                       

Dan Simon

Dan is a leader in the field of transformative mediation. He is the author of the chapter on divorce mediation in the Institute for the Study of Conflict Transformation's ("ISCT") TRANSFORMATIVE MEDIATION SOURCEBOOK. He is a Past Chair of the Minnesota State Bar Association's Alternative Dispute Resolution Section. He served… MORE >