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?

This past Spring I taught a senior and graduate level class in mediation. After a discussion about how much people knew about the process, the class agreed to interview people who had participated in mediation. The results were interesting:

The students were able to find people who had participated in many contexts for mediation including family (divorce, child custody and visitation), neighbor vs. neighbor disputes in community mediation centers, tenant vs. landlord disputes in Small Claims courts, and on-the-job disputes in the workplace.

Almost all of the mediations ended in agreements. The exceptions were highly charged emotional disputes where one of the parties was not prepared to mediate. One person said, “my husband was not emotionally ready to compromise.  He was too angry.” Another said, “His attorney had not prepared him for mediation. When the mediator told him not to interrupt, he asked his attorney to get another mediator.”

Mediators take great care to be neutral and impartial and yet, what matters is the disputant’s perception of the mediator. One disputant, a young Hispanic woman, described how her mediator was an older man who introduced himself as a businessman. She felt that he would team up with her landlord against her and would not be neutral. That was her perception, which influenced her more than the reality.

Many disputants appreciate the opportunity to be heard: One stated, “I got the chance to tell my side of the story without any interruptions.” Another stated, “It was refreshing to have a neutral person listen to my side. It helped calm me down.”

The most frequently discussed aspect of mediation mentioned in the interviews was the value of the mediators’ summaries. One recalled how the mediator did summaries to make sure everything each party said was correct and understood by everyone. Another said, “The mediator’s summaries were helpful because I was able to hear what was said again and confirm that it was correct. I appreciate it was done throughout the mediation.” My students confirmed how important the mediator’s summaries are to the process. One of my students said, “You can say something, but when someone says it back to you, you can really hear how the other party hears it.”

The positive conclusions from the process included “extremely less expensive” and “the issues were resolved.” One response was typical, “It was conversational, inexpensive and we came up with a workable solution.”  

What did my students learn from the experience? They learned that neutrality, listening and summaries are keys to successful mediation. And that those same skills are critical when any of us attempt to help others who are in conflict.