The Discipline of Mediators: Keeping it in Neutral Without Getting Stalled

The Discipline of Mediators: Keeping it in Neutral Without Getting Stalled

The Discipline of Mediators: Keeping it in Neutral Without Getting Stalled

Neutrality of the third party is a fundamental value of mediation. So much so that mediators are often referred to as ‘neutrals’. At times, maintaining that neutrality can be challenging, even for the most experienced mediators. Good mediators learn to acknowledge their biases and manage them in order to provide the best service to their clients.

By Ehsan Ali and Alnoor Maherali

Neutrality, that is avoiding taking sides, is part of a mediator’s duty to their clients.  This is not always easy.  Mediators are human beings and are therefore affected by things they see and hear from their clients.  But the process can only work if the mediator restrains their natural impulse for sympathy with any one side and instead shows empathy for both sides.  These are the common struggles mediators can face and the steps they can take to maintain their neutrality.  

1. Deja Vu - A mediator comes into each mediation with their own life experiences and background.  Sometimes this means that a case might resemble something that the mediator has gone through in their own life.  In other cases, the clients may remind the mediator of people they have interacted with. These are not inherently issues that reduce the mediator’s effectiveness.  Familiarity with a situation or personalities can allow the mediator to empathize with those going through the conflict or dealing with a disconnect in communication. The two neutrality issues that may arise are: (a) “I’ve been in this person’s shoes”, and (b) “I don’t like that person.”

A. I’ve been in his/her/their shoes
It can be natural when listening to a person describe a conflict that has deeply affected them to recall a time they faced a similar situation.  Mediators learn to restrain that impulse in order to avoid making the conversation about themselves and instead honor the client’s own struggle.  But sometimes a mediator hears a story that resonates strongly with them.  When this happens, a mediator must remember two things: (a) no matter how similar the stories may seem, the client’s story is personal to them and is different from one’s own experience; and (b) the role of the mediator is to remain neutral and provide the safe space to allow these parties to work through the issue themselves; it is not about the mediator. 

B. I don’t like him/her/them
The flip side is also possible.  A mediator might encounter a client who rubs them the wrong way.  It may be their manner of speaking, a verbal tic, an outlook on life, or something else that irks the mediator personally.  In these circumstances, a mediator must ask themselves a difficult question, “Can I still fairly mediate this dispute?”  The answer comes down to whether they can separate their personal feelings about the party from their respect for the party and the process.  A mediator does not have to be every client’s best friend.  But they must be able to respect the client’s interests and desires as legitimate and important to the negotiation.  This is critical to the mediator performing their function effectively.  

2. The “Fair” Solution - Sometimes the mediator may believe that one party has suggested a “fair” solution.  But that feeling can morph into surprise when the other party rejects that solution.  In these cases, it is critically important for the mediator to remember that it is not their dispute.  There may be aspects to the conflict they are not privy to; there may also be underlying conditions in the rejecting party’s mind that make the “fair” solution a bad deal for them.  In these situations, a mediator should remember that the parties’ have to live with and execute any final agreement and thus must make the best decision for themselves.  

3. Isn’t it obvious? - A related challenge is when a solution or deal seems obvious to the mediator, but the parties just can’t seem to get there. Some mediators choose to address this tension by suggesting potential solutions. We do not. Our ‘facilitative’ approach to mediation comes from our belief that our clients’ are better served when they have control over their own interests and are empowered to find solutions that work for them. Enabling people to solve problems in their own way gives them ownership of the outcomes. And our mediators are very good at helping the parties to come up with and evaluate the practicality of their own ideas.

4. What did they just say?! - Strong language is not unheard of in mediation sessions.  Disputes involve personal experiences and firmly held beliefs.  And when people disagree about these, the discussion can escalate.  Mediators can help reduce the heat by clarifying and identifying these differences so each party feels that their view has been heard correctly.  But when the language goes from strong to inflammatory, calling a time-out may help.  A mediator can use this break to check in with the party on the receiving end, see what the party who used the inflammatory language was thinking, and make a plan to proceed. Some parties may want to continue; seeing the discussion become “real” can make them feel that they are actually getting to the crux of the issue.  Others may, understandably, want to leave the session.  The important questions are (a) do both parties want to continue the session and (b) is the mediator able to maintain their neutrality in light of the language that was used. 

5. There is a power imbalance here, I should help - Neutrality does not mean ignoring dynamics that are occurring in the session.  Where there is a power-dynamic or conflict pattern that results in one party getting verbally battered or going quiet, part of the mediator’s job is to intercede to make sure the person is able to raise their concerns and feel heard.  This is actually a critical aspect of the mediator’s duty.  So long as the mediator respects the wishes of the parties, strives to maintain a balance in the conversation, and is doing their best to make sure the parties are hearing each other, there is no neutrality issue here.  

6. Does he/she feel unsafe? - When a party feels unsafe, it is not a violation of neutrality to address it.  In fact, it is absolutely critical to maintaining another core value of mediation - safety.  A party that does not feel safe cannot freely agree to a resolution, thereby compromising the mediation process as a whole.  As such, a mediator must continuously assess whether any party may be at risk/in danger and be ready to take steps to rectify the situation.  They may include calling a caucus, more frequent check-ins with parties, or further steps as the situation requires.  

Maintaining neutrality and overcoming one’s biases are difficult but critical requirements of being a good mediator.  And as we’ve discussed previously, one must also overcome any desire to get a deal for the sake of getting a deal. When a mediator is working towards the best outcome for all parties to the mediation, unexpected and great resolutions are possible.  If you or someone you know is stuck in conflict, consider reaching out to Venn Mediation for help from an experienced, third party neutral. We are based in New York but are experienced in online mediation and can work with people anywhere. Disputes can be difficult, but dispute resolution doesn’t have to be. We would love to help.

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