Taking Exquisite Care – The Challenge of Mediator Neutrality

By Laura Melton Tucker, September 20th, 2010

Listen to this entry.

Mediator neutrality is recognized more frequently in its absence than its presence.  Over the last month, I heard three real life mediation stories that underscored this point – one story came from a friend, one from a colleague and one from our court magistrate.  All three stories illustrate the exquisite care that must be taken to treat clients impartially.

A friend on the east coast is in the process of dissolving her 30 year marriage.  She is lucky because there are valuable marital assets to be divided – enough to give her lifelong security, which is particularly important to her because of serious health concerns that leave her unable to work. In an effort to speed the divorce process and save attorney and court costs,  my friend agreed to a caucus style mediation.  She and her attorney were in one office while her husband and his attorney were in another down the hall.  The ex-judge mediator walked between the two offices, hoping to broker a deal between both sides.  Things went bad from the start when the mediator entered the room, looked at my friend and said, “You don’t look sick at all,” followed by, “Gee, your husband is a great guy.”  My friend endured four hours of back and forth, feeling unprotected by her attorney and out numbered by the men in what, to her, felt like “the boys club.”  She explained to me, ‘I knew from the first minute the mediator entered the room that my husband had gotten to him first and won him over.  The mediator didn’t believe I was sick and he liked my husband more. It was an uphill struggle from there.  The whole thing was a waste of time and money.”

The second story shows how bias can be imperceptible to a well intentioned mediator, but upsetting to the participant.  In this case, the parties were mediating a small claim.  The plaintiff had a difficult time stating her case because English is her second language.  When the language barrier prevented everyone at the table from understanding one another, the defendant “helped out” by explaining the situation on the plaintiff’s behalf.  At the conclusion of the mediation, which ended with an agreement, the mediator was chagrined to read on the evaluation that the plaintiff felt the mediator was biased because the mediator had let the defendant do all the talking.  The mediator shared this story at a brown bag, giving the rest of us mediators an opportunity to think through the dynamics so that we can avoid making a similar mistake.  We problem solved several options for empowering the English-as-a-second-language speaker.  The most simple would be to check in frequently with the plaintiff to see if she agreed with the defendant’s re-telling.  As long as the plaintiff is comfortable with the work-around, and able to make decisions at each step, the process may end up working for all of the parties, with the mediator’s neutrality intact.

The third story shows how neutrality trumps convenience and friendship.  A magistrate in our small claims court found his neutrality compromised when a neighbor showed up to have his case tried. The magistrate called his neighbor and the other party forward  and gave his usual pro-mediation speech with a slightly different ending:  “We are lucky in our district to have a small claims program that provides a free mediation service. Please go with the mediator and discuss your case to see if you can come to an agreement. Good luck with your mediation this afternoon, because if you can’t come up with your own agreement, I’ll reassign the case to another judge on next month’s calendar. I need to recuse myself for fear of any appearance of bias.”  As it turned out, they did settle their case…incentivized, perhaps, by the inconvenience of taking more time off work for a later court date

Mediator neutrality is a cornerstone of transformative mediation.  Though I start my mediations by assuring my clients that I am a  neutral third-party observer, I anticipate that one day a client will look askance at me and say, “Yeah, right.  Get real.”  And he’d be right. Mediators are never neutral.  Every mediator shows up at the table with his or her own set of biases, and every mediator exerts influence, intentionally or not,  over the conversation.   The takeaway is that in order to avoid even the appearance of bias, mediators must commit to using their influence for one purpose – keeping the ultimate decisions on outcome in the parties’ hands.

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