DO MEDIATORS FAVOR ONE SIDE OVER THE OTHER?

It is long established and recognized that a mediator must be neutral and impartial at all times. In fact, the requirement to be neutral and impartial is made explicit in codes of conduct for mediators. But should a mediator remain “neutral and impartial” even when the parties are moving to an agreement that is grossly unfair to one of the parties? That raises the question of what exactly neutral and impartial means.

In the past I had fallen into the habit of saying in my mediation introduction that I had “no interest” in the parties’ dispute.  I meant I had no personal involvement in their dispute, not that I was indifferent. One time a disputant asked me, “Then why are you mediating if you aren’t interested?” Part of being neutral and impartial does include being committed to a fair and robust process and that includes the mediator’s responsibility to be skilled, reasonable, trustworthy, have no conflict of interest and in all actions be free of prejudice.

But when, in the interests of fairness and of a robust process, should a mediator act in a manner that could be perceived as “favoring” one disputant?

A mediator once did a court session between the owner of a landscaping business and one of his employees. The owner had sold a used truck to the employee and had been deducting payments out of the employee’s paycheck. Bu then the owner terminated the employee before the truck had been paid in full. They were in court over ownership of the truck. As the mediation progressed the owner produced a written sales agreement that he said he had given to the employee. The employee had been contending there had been no written sales agreement, that everything had been agreed upon verbally.

As the mediator sat there she noticed the employee’s eye movements as he looked at the sales agreement. Somehow she had the feeling that there was more to this. She asked the employee if she could read the agreement aloud. His response was a quiet “Please.” Later in a caucus she asked the owner how he communicated with employees who couldn’t read English. He simply said, “Everything is word of mouth.”

I’m not going to reveal the outcome of this mediation, but I am going to point out that a strictly neutral and impartial mediator may not have brought up the issue of literacy. So the question is whether a mediator who is committed to conducting a fair and robust process have done so?

What do you think?