Recently, I wrote about the myths people hold regarding conflict and the need for mediators to identify the cause in order to help disputants find resolution. Equally important are the myths people accept about listening to others during meditation sessions and the following are examples of some misconceptions that should be addressed:

FIRST: You’re either a good listener or you’re not: A person may have been born with the ability to hear, but that doesn’t mean they really listen. Listening is a skill we either have or haven’t yet learned. It involves not only hearing words, but also observing non-verbal behaviors, putting both together and then determining meaning within the context in which they were expressed.

SECOND: Intelligent people are better listeners: While possessing a large vocabulary and other learned attributes that might improve understanding, it shouldn’t automatically be assumed such acumen results in better listening habits. That said, those with high emotional intelligence, known as EQ, generally have an increased awareness of others’ feelings and tend to be very good listeners.

THIRD: During negotiations, verbal skills are more important: It’s actually the opposite. Successful negotiators are convinced their most valuable skill is the ability to decipher what matters to each party involved in order to understand their wants and needs. That only happens through active listening.

FOURTH: There’s no need to listen if determining what parties require in advance: This is perhaps the most common misconception. It’s simply wrong to believe one could accurately surmise beforehand what parties in conflict need without hearing their concerns directly. Good listening leads to understanding how each party perceives the situation, instead of imagining for them what they should want and need.

Ultimately, mediators often find the need to address whether or not disputing parties believe their position is being heard to help prepare them for a constructive negotiation.

In common discourse, the terms neutrality and impartiality are used synonymously.

Many mediators use them interchangeably as “associated terms.” Within one author’s book I found the Index entry for Neutrality listed as “see impartiality.”

But is there a real difference between the two concepts? One Australian mediator/author draws a distinction. By neutrality, he refers to “a mediator’s sense of disinterest in the dispute and its outcome,” while he defines impartiality as “an even-handedness, objectivity and fairness towards the parties during the mediation process.” With this distinction it could be said impartiality is an absolute as it is inconceivable the parties involved in a session would waive the requirement for the mediator to act fairly. On the other hand, neutrality could be waived if a mediator had prior contact with one of the parties. 

The difference becomes critical when there’s a real power difference between the parties. If a mediator gives support to the party with less power, is the strict sense of the term not being impartial? But what if that mediator did so in order to promote true self-determination? Isn’t that a more important goal?

For example, take the hypothetical case of Yousef, who runs a small furniture upholstery business and Joseph, the manager of a large apartment complex. Joseph placed a significant order for upholstery and became Yousef’s sole client as a result, but then refused to pay citing flaws. Yousef filed a Small Claims Court case. During mediation, Yousef appears to be overwhelmed by the process and unable to negotiate with Joseph, who as an experienced manager holds firm with a low offer to settle the matter.

Is the mediator violating standards of neutrality if she is at all concerned about the inequity? Is the mediator violating standards of impartiality if in caucus she guides Yousef in ways to better negotiate? Or is the mediator violating standards of both neutrality and impartiality if she ends the mediation believing that Yousef’s interests are better protected in court?

Some mediators frame this dilemma in terms of “procedural” versus “substantive” fairness. Some mediators argue that mediators must attend to substantive fairness, that is, that the outcome must be reasonable and fair. It should be noted, however, some state standards require the mediation process be fair and balanced, but that the mediator themselves are not responsible to ensure substantive fairness in the final agreement.