Wednesday, January 16, 2008

Mediator as Neutral

The core principles of mediation practice for a mediator are to act as a neutral and to maintain confidentiality. Notice I said act as a neutral, not be fair. For important reasons that I explain below, the mediator has no business trying to be fair as long as the mediator is neutral.

By being a neutral, the mediator has no interest in the conflict other than its resolution. The mediator decides nothing as to matters of fact or law. The mediator's role is to try to understand each parties' interests and objectives, and move each party to a point of resolution under circumstances where the parties, acting on their own, would find such movement difficult.

By conceptualizing a mediator's role as being fair, two problems are introduced: first, fairness implies that each party is receiving their due by means of the mediated resolution. This creates an impediment to resolution because it causes the parties to analyze their claims in terms of their ex ante expectations that they had when they entered into the deal or situation that gives rise to the conflict. It is for the courts to provide parties their expectancy damges, to place the parties where they would have been had the conflict not arisen. In order to do this, the court must make findings of law and fact, and presumably do so in a fair manner.

On the other hand, the mediator works most efficiently if the mediator can move the parties off of their claims of frustrated expectation to the ex post analysis of what their respective interests are, here and now, and how each party may constructively move on in a way that satisfies both parties' reasonable objectives. To do this, the mediator is best served by helping each party to distinguish reasonable from unreasonable interests and objectives, given the current facts and circumstances. To be successful, the mediator should be seen as not taking sides or playing favorites; being fair necessarily means taking sides, at least that will be the way it is perceived by one (or both) of the parties.

Secondly, being a neutral may, at times, require "unfair" treatment of the parties, in the sense, that the mediator must treat the parties differently in order to create movement towards resolution. This is best done during caucuses, where a mediator may find that different types of analysis or argumentation are required for each party, based upon the parties' situations and the stage of the mediation. In a theme that I will explore elsewhere on this blog, one of the parties may require more focused and specialized effort by the mediator at certain stages of the mediation; one party may, in other words, be the party best suited to move at a "pivot point" of the mediation. The other party may be inclined to make a substantial accomodation, provided the first party resolves an issue that may only be resolvable by that party (hence, the notion that the resolution pivots around the first party).

If a mediator's true interest is to neutrally puruse a resolution, rather than to act fairly, then the mediator must be both sensitive enough to discern where and when these pivot points arise, and also free to deal with these pivot points in a manner that best promotes the process towards resolution without focusing on the substantive fairness of the result. One can be neutral and still insist that the resolution of a pivot point in the mediation should rest with the party that is in the best position to deal constructively with it. It is simply a category mistake to question whether it is "fair" to do so. Indeed, the mediator has no general competence to do so, for it is always the parties, themselves, that are the best guardians of their own fair and just deserts.

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