Duties of the Mediator: Remaining Unbiased

A mediator must prevent any perception of bias on her part.  The response when faced with a party whose good faith in negotiating is questionable illustrates this imperative.

The need to preserve her neutrality does not bar the mediator from questioning a party about his good faith because such action seeks to protect the integrity of the mediation process, which entails no taking of sides.  The mediator, however, also must keep in mind that a party may well perceive her to have turned against him in questioning his good faith.  In such a situation, she has lost her standing as a neutral and thwarted the process she has sought to protect.

The mediator should respond in one of the following ways when confronted with this situation.  First, if she believes the party is incapable of negotiating in good faith, then she should terminate the mediation.  Second, if the mediator believes the party will negotiate in good faith, but also considers her neutrality to have become irreparably compromised, then she should withdraw from the process.  Finally, if she believes that she can be neutral going forward, then she should secure informed consent to her continued participation.  Because the last of these responses brings into play other ongoing duties of the mediator, I will explore it in a future post.

Contributor: Ben Jacewicz, NVMS Mentor Mediator

One Comment on “Duties of the Mediator: Remaining Unbiased

  1. The concepts of ‘neutrality’ and ‘non-bias’ are theoretically and philosophically sound, but practically pretty impossible for most humans to achieve, including mediators.

    I would suggest that being aware of one’s own biases, triggers, schemas, beliefs, and ladders of inference is an important step toward becoming more ‘centered’ during mediation. Putting the fact that one cannot, in truth, be wholly neutral, unbiased, or even ‘impartial’ out on the table is an important part of remaining humble and ‘in service’ to clients, as well as setting the expectation for clients that mediators are human beings with all the attending strengths and failings.

    I don’t know if I would agree that one must prevent a perception of bias. I can’t regulate or prevent how a person will react. What I can, and DO, create, however, is a framework within which I acknowledge up front that the parties own the content that I direct the process in service to them, and that together, despite any human characteristics we all bring to the table, we will work in good faith toward a solution that is acceptable to them.

    I ask them often and honestly to please let me know if they feel I am being biased, not listening as they would like me to, moving too quickly/slowly and how I can change what I am doing with the process in order to make them feel more comfortable.

    In the end, I think that for me the most important result is that the parties leave the table considering me as a fair and open minded mediator, despite the experiential baggage and triggers I might myself bring into the room on any given day. I also think that it helps for me to be vulnerable and acknowledge my own limits, both to them and to myself. Needless to say, there are some triggers that are harder than others to put aside. If I feel that I won’t be able to help my clients through the process with open curiosity and fairness, then I refer them to someone else who I respect in my circle of mediator colleagues.

    As to ‘good faith’ on the part of the parties….again, I just put my concerns on the table as they arise. That approach has rarely failed me.

    Jul 2, 2014 | Andrea Young (dreayoung@gmail.com)