Maintaining Neutrality: Who is my Client?

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A large percentage of people come to mediation pro se (representing themselves).  Lacking an attorney advocate, pro se parties will sometimes attempt to cultivate a bias in the mediator against their opponent, possibly hoping that the mediator will champion their cause.  However, moving from a position of neutrality into a position of advocacy goes against the professional standards a mediator is required to uphold.  If neutrality is breached, the mediator cannot be equidistant, and negotiations become ineffective.

Pure neutrality has a foundational premise that the mediator shall neither personally gain nor lose from the outcome of the negotiations.  Does this mean that a mediator should not form a personal opinion about the dispute after working with parties over several hours’ time?  Hardly, but the opinion of the mediator is only helpful when it relates to fairness and fair process. 

Discussions about neutrality abound in professional circles, including the rather silly notion that even the mediator’s desire that the parties achieve settlement might, in-and- of-itself, be viewed as a bias (personal gains of feeding into their own pride, touting a high percentage of success, etc.)  Self-deprecation aside, dispute resolution professionals must continually strive toward improved effectiveness by building capacity in communication techniques, business acumen, writing succinct memorandums of understanding; it follows that improvement is measured by parties’ willingness to sign on to the agreement created through the facilitated negotiation process.  People generally eschew agreements that are created in an atmosphere of overt bias toward an opponent’s position.

The truest challenge to maintaining neutrality exists when one of the parties seeks to take advantage of another by use of unethical means: deception, excessive force or threats, or other unfair power plays.   Rather than inspiring support, these distasteful postures tend to evoke sympathy for the less powerful party.

Neutrality does not require that a mediator refrain from:

1. Proposing and developing options for settlement that may benefit parties
2. Acknowledging the parties’ various power plays or conflict behavior styles  
3. Asking about what the other side gains by agreeing to an egregious demand

Early on in my mediation career, I came to see the “case” as my client: all parties’ needs must be considered.  If there is a dispute between two people, my job is to generate options that will address the needs of both.  If parties are bargaining on behalf of others, the eventual settlement must satisfy some of the needs of all involved; examples include writing provisions that meet the needs of 10 people on the workplace team; options are developed to enhance the lives of five family members when a divorcing couple has 3 children.  If this criterion is not met, parties will walk away without agreement or, when an agreement is signed but feels coerced, the terms and conditions that are perceived as unfair will be resisted.