Last week I was struck by a headline stating a mediator had “sided with” a party in a dispute. Of course, it turned out that the mediator in question was actually acting as a Special Magistrate; however, the idea of a partial mediator was unsettling.
The National Mediation Accreditation Standards require a mediator to “conduct the dispute resolution process in an impartial manner”. The Standards further state:
“Impartiality means freedom from favouritism or bias either in word or action, or the omission of word or action, that might give appearance of such favouritism or bias…
The perception by one or both of the participants that the mediator is partial does not in itself require the mediator to withdraw. In such circumstances, however, the mediator must remind all parties of a right to terminate the mediation process. “
Erin Johnson has written a great article on mediator neutrality for the Boston Centre for Resolution, in which she identifies many potential challenges to the mediator’s neutrality including: prior relationships with one or other (or both) of the parties; who pays the mediator’s fees; how and by whom the initial information and instructions are provided, and what is included in those instructions; conflict of interest; and hidden bias.
“It is important to remember that there are often hidden or unknown thoughts or beliefs that negatively affect mediator neutrality. We can hope that professional mediators would refuse to take a case that touches on their biases. However there are times when issues may arise in the midst of a mediation that trigger bias on the part of the mediator.”
Read Erin’s full article here: cfrmediation.com/neutrality-in-mediation/
The vital importance of being impartial
Communication and trust are the foundations of a successful mediation. Typically, by the time a matter gets to mediation, the parties have lost both and it is up to the mediator to re-establish trust and communication between the disputants. Practicing impartiality ensures the process of mediation is free from the mediator’s own prejudice or bias, and the session remains focussed on the parties’ own concerns without importing the mediator’s views.
A party who perceives the mediator is “on my side” may become more entrenched in their initial position, less open to examination of their own and others’ interests, and more resistant to any options generated during the session. Conversely, a party who perceives the mediator is “against me” may feel ignored, dismissed, isolated or even “ganged up on”, causing them to withdraw from the dispute resolution process.
Impartiality is key to winning and keeping the trust of all parties; once trust has been established, then open, honest communication is more likely to follow.