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The Illusion of Mediator Neutrality

The Illusion of Mediator Neutrality

What’s your view on mediator neutrality?

 

Transcript

Full Transcript

Okay, I’m not neutral. I’m not impartial. That’s the thing that comes from our basic training that we mediators all think we’re supposed to be. Let me tell you why I’m not and what I find about it. To me, neutral brings two connotations to mind and I don’t like either one of them. Neutral, to me, is a car going vroom, vroom, vroom and not going anywhere because it’s not in gear, it’s not getting any traction with the tires. It’s making a lot of noise but it’s not moving things forward. That’s one perspective of neutral, one connotation, if you will.

 

The other is neutered, which to me, connotes un-empowered and unable to bring anything, whether it’s influence or help or advice or coaching to a mediation and I want to be able to do those things. So the idea of being neutral to me, says to me that by definition I shouldn’t be influencing things or bringing too much of myself into the process. As you can tell already, that’s not something I’m comfortable with.

 

To me, impartial is the act of acting like you’re neutral whether you actually are or not. I don’t think, as human beings, we’re truly neutral. We like some people more than others. Some people get under our skin or remind us of our ex-spouses or in-laws or somebody we don’t like or whatever and we have a human reaction to that, a normal human reaction. I don’t think we’re able to actually be neutral and feel the same toward both people so I don’t pretend to do that.

 

Impartial, to me, is a step removed from that and is more about treating them the same and acting the same toward them, which has a layer of facade to it, as I think about it. I don’t know that it’s the most effective way to mediate because if you have this multinational, global corporation in one room and the receptionist who was wrongfully terminated, she says, in the other room, from her position with them, the balance of power in those two rooms is vastly different. The risk analysis, the outcome, the value of that marginal $10, £10, €10 is different to each of them.

 

I don’t think we should treat that the same. I think we have to almost speak a different language in the room with the multinational corporation and I think we’ve got to speak a language they understand, which is risk and exposure and those sorts of things. I think with the woman that we’re talking about who claims to have been wrongfully terminated, I think we have to talk about the big picture of her life and how this fits and what she wants and what her goals and interests are. I think that those are very different discussions and one might take longer than the other, for example. So the notion that being impartial requires me to spend 10 minutes and 10 minutes or 20 minutes and 20 minutes, I don’t buy into that.

 

In thinking about that, if I’m not neutral and I’m not impartial, what am I as a mediator? Set me off on a course where what I came up with is that what I am in my mediation style as best I can describe it, is I am ‘mutually partial’. What that means to me is when I’m in that room, let’s just use that example, I’m in that room with the former receptionist who was wrongfully terminated because she was a whistle blower, she complained about an unsafe circumstance and they fired her.

 

In that room, I’m her negotiation coach. I’m giving her perspective and helping her through the process. Even if she’s got an attorney there with her, sometimes I’m helping the two of them together. Sometimes I’m working with the attorneys. Sometimes I’m working just with her. But I’m an advocate in that room for them in trying to help them get the best result they can get for what she needs.

 

Then I go in the other room and rather than being adversarial and saying, ‘Oh, you’re going to lose,’ and, ‘She’s going to put this on the front page of the paper and it’ll be bad press for you.’ I can threaten them with all of that but that’s what they expect. That’s what they see coming. So instead, I go in there and say, ‘Okay, how are we going to get this resolved? She’s made this kind of a demand. She wants these kinds of things done for her. How do we want to respond to that?’ With first person plural, we, us language, I coach with them and I say, ‘If you do this, she’s liable to do that,’ that, ‘If you do this, she may do that. Which way do you think works better for you?’

 

So I don’t make the decision for them, most times, almost all the time I don’t make the decision for them, but what I do is take a very heavy coaching hand to move them with that traction and motive power we talked about with the car, move them forward through the process, help them think through their risks, their options, all that sort of thing, and I’m very much a negotiation coach in both rooms. So I’ve come up with ‘mutually partial’ to describe how I do the process because I want them both to get as much of what they came for that day as they can, both economically and non-economically. That’s why being neutral and impartial doesn’t help me get there. How does that sit with you?

About the mediator

Lee Jay Berman Profile Pic

Lee Jay began as a full-time mediator and trainer over 18 years ago, and has successfully mediated over 1,700 matters. He is a national panelist with the American Arbitration Association, a Distinguished Fellow with the International Academy of Mediators, internationally certified by the IMI, and a Dispute Resolution Expert with the United Nations Development Programme. In 2008, Lee Jay founded the American Institute of Mediation offering “W... View Mediator