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P M Young
Pepperdine Dispute Resolution Law Journal, Vol. 11, No. 309, 2011, pp 309-394.
A mediator in a civil case calls one of the defendants a ‘spoiled brat’ and identifies the defendants as ‘poor slobs’ who would never be recognised in court. The same mediator decides that the offer made by the plaintiff is acceptable and then attempts to impose the settlement on the defendants. When the defendants indicate that they will not settle at mediation, the mediator does not terminate the mediation at the parties’ request. Another mediator, in a family mediation, acts ‘very aggressive[ly] and condescending[ly]’ towards one party, yells at that party, and uses profanity when speaking to her. The mediator also tells the party that she will ‘lose in court’ and that she makes a terrible witness. In another family mediation, the mediator shares her own personal story of divorce and then exhibits bias against men. She is rude, short, and impatient with the husband during the mediation process. These allegations appear in grievances filed against Florida mediators. Whether true or not, they provide examples of mediator relationships, attitudes, or conduct that indicate the mediator has lost his or her impartiality towards one of the parties. They illustrate how mediator bias – actual or perceived – can directly affect the parties’ self-determination and the quality of the process that parties experience.
Very few states impose any requirement that instructors include a discussion of mediation ethics in courses designed to train new mediators.
I start most workshops with a short, Power Point lecture to allow students to absorb some of the basic knowledge about mediator neutrality. The first slide summarises the ‘core values’ of mediation: party self-determination, mediator impartiality, and confidentiality of mediation communications. To that list, I have added ‘quality of the process/mediator competence’.
Well-known mediators and professors teaching mediation have provided their own perspectives on this topic. Benjamin, a well-known Oregon mediator, suggests that the term ‘neutrality’ has many meanings:
In the classic sense of the term ‘neutral,’ the mediator: (1) will not intervene in the substance of the dispute; (2) is indifferent to the welfare of the clients; (3) has no previous or present relationships with the parties outside the mediation; (4) will not attempt to alter perceived power variances; (5) is disinterested in the outcome; and (6) is unconcerned with the impact of the settlement on unrepresented parties ... The ambiguity of the term is even more confusing for clients in conflict, many of whom come to mediation with the preconceived notion that a mediator is or should be just like a judge.
Some authors note the importance of a mediator’s impartiality to the process of building trust with the parties and in supporting party self-determination.
Many scholars and practitioners acknowledge the difficulty of maintaining actual neutrality or impartiality in mediation. Several authors challenge whether mediator impartiality can exist. Hinshaw notes: ‘Practically speaking ... once a mediator makes it past the mechanical conflicts check and the mediation begins, it is often difficult for the mediator to be completely impartial due to the relational nature of the mediator’s task.’ Moore concludes: ‘No one can be entirely impartial.’
Cloke recommends that mediators shift their focus from the concept’s emphasis on ‘formality, perspective, objectivity, logic, or dispassionate judgement’ to the concept’s ‘concern for fairness and lack of selective bias.’ He argues that parties seek a mediator who is ‘honest, empathetic, and omnipartial, meaning on both parties’ sides at the same time.’ Rather than ignoring his or her past experiences, the mediator should instead use them ‘to gain an open, honest, humble perspective on the present [conflict].’
Honeyman and several other scholars express concern that a mediator will not be aware of his or her biases. Accordingly, he or she will not keep them out of the interventions they make in the process. Lerner, writing in the context of legal ethics, says that values, intuitions, expectations, and needs ‘operate below the radar of our consciousness, automatic, ‘emotional’ reaction, rather than thoughtful, reasoned analysis [and so they] may drive our responses to stressful questions of ethics and professional responsibility.’ Accordingly, even with the use of best practices and holding the best intentions to remain impartial, mediators still harbor biases that may, or do, affect the process.
Still other authors suggest that mediator impartiality can adversely affect the mediation in unwanted ways. ‘If, for whatever reason, litigants presume mediator neutrality but then perceive mediator bias at one or many points throughout the process, their level of frustration and dissatisfaction with the process is likely to increase substantially.’
Finally, Gunning worries that ‘[t]he American model of mediation emphasises ‘neutrality’ in a mediator and generally defines neutrality as requiring non-intervention on the part of the mediator.’ But when parties come to mediation with imbalances of power reflecting broader issues of racism or other societal power imbalances, the mediator’s silence, rather than indicating neutrality, reinforces the more powerful person’s interpretative framework.
In an attempt to get workshop participants to begin the processing (second) stage of learning, I ask them to consider why we should concern ourselves with mediator impartiality.
The research also shows that procedural justice affects parties’ perceptions about the justice of the substantive outcome. It also affects their compliance with those outcomes. And, it affects their perceptions of the legitimacy of the authorities producing those outcomes.
I pause here to ask the workshop participants to discuss in buzz groups the following question that appears on a Power Point slide: ‘Why should we worry about procedural justice in the context of mediation?’ I explain that at the end of the five minutes I have allotted for this discussion, one person in the buzz group will report the comments of the group. It shifts the focus from the ‘sage on the stage’ to the learners themselves, with the instructor playing the role of ‘guide on the side.’ After hearing from all the buzz groups, I will open the floor to any remaining comments or ideas. At the end of this discussion of procedural justice, I note that even when the neutral, like a mediator, has no (or should have no) control over the substantive outcome of the process, parties still want the mediator to show ‘consideration’ and to treat the parties even-handedly.
To reinforce the lessons of this section of the presentation, I share some of the findings of my empirical research about grievances filed against mediators in five states. I am asking students to again absorb (first-stage learning) some additional information.
The next part of the workshop allows participants to consider the elements of mediator impartiality beginning, as if at the top of a wide-mouth funnel, with its more general attributes and moving to more specific attributes of the concept. I begin with a short lecture on the general nature of mediator partiality or bias. It can be actual, potential, or in appearance only. Next, I identify the possible sources of bias: (1) a mediator’s relationships with the parties or their lawyers; (2) a mediator’s reaction to conduct or attributes of the parties or their lawyers; (3) the relationship the mediator may have to the substantive outcome in the dispute; and (4) conduct of the mediator that indicates bias in favour of a particular outcome.
Alfini and his co-authors suggest that ‘[m]ost people will conclude that the mediator is impartial if the mediator does not know either of them and has no preconceived notion about the dispute.’
Ethics codes do not bar mediators from serving when the mediator has a prior relationship with one of the participants to the mediation. They instead require disclosure of any relationships to the parties. If the parties waive the conflict of interest, the mediator may serve. Mediators should err on the side of over-disclosure of conflicts of interest or potential conflicts of interest. Arguably, if the situation permits, they should check for conflicts with the same care imposed on lawyers by legal ethics rules. Mediators must also avoid creating any conflicts of interest during the course of the mediation – for instance, by buying stock in the company owned by one of the parties. Finally, mediators should avoid creating an appearance of impropriety by representing parties in the future in the same or similar matter.
In the training workshop, I indicate that conflicts of interest can be past, present, or created in the future, but I do not reveal the discussion of the topic set out above. Instead, I ask the buzz groups to answer the following question appearing on a Power Point slide: ‘What types of past relationships could give rise to actual bias, potential bias, or the appearance of bias?’ After the buzz groups report their comments or examples, I show a short video clip from the library of the Hamline University Law School Mediator Case Law Project. The clip shows how a mediator’s interaction with a ‘repeat player’ can affect the other party’s perception of the mediator’s impartiality. I follow this discussion with three more rounds of buzz group discussion that respond to the following questions: What types of current (mid-mediation) relationships could give rise to actual bias, potential bias, or the appearance of bias? What types of future relationships could give rise to actual bias, potential bias, or the appearance of bias? Why should we worry about future relationships a mediator might have with a party?
Kovach suggests that a mediator’s attempt to correct imbalances in negotiating power or skills (attributes or behaviour of the party) implicates mediator impartiality, because ‘he becomes an advocate for the weaker less capable party ...’. Another author cautions mediators about their caucus processes. A party may perceive bias or favouritism if the mediator spends more time in caucus with the other party. The mediator should advise parties in advance that he or she may need to spend more time with one party to gather helpful information or to formulate a settlement proposal.
In the workshop, I ask the buzz groups to consider the following questions: (1) ‘What kinds of conduct of a party or his or her lawyer might affect a mediator’s impartiality?’ and (2) ‘What attributes of a party or his or her lawyer might affect a mediator’s impartiality?’ One participant disclosed that she had difficulty staying neutral towards parties who wanted to open the mediation session with a prayer. Another participant described a session in which one of the parties, a law enforcement officer, removed her holstered gun from her waist and placed it prominently in the centre of the mediation table. Another participant described her difficulty in working with a party whose mannerisms reminded her of a brother she did not like.
In an ideal setting, a mediator will defer to the high-quality decision making of the parties to settle-or not-and on what terms. Gifford warns that ‘[i]f a mediator intrudes excessively into the substantive content of the negotiated agreement, she virtually becomes an adjudicator and not a mediator.’ The resulting agreement will not likely serve the parties’ interests. In addition, the parties may resent the agreement because one or both of them may sense that the mediator imposed it on the parties.
Very few authors have commented on the risks associated with a therapist-mediator who blurs professional roles. These therapists may mediate with a particular outcome in mind, specifically ‘the best interest of the child’ as a matter of mediator philosophy. Schwarz, writing in the context of group facilitation, considers the issue from the perspective of the use of neutral questions, paraphrasing, and summarising. He admits that a neutral is ‘not neutral about the content of a group’s discussion when it involves how to manage group or interpersonal process more effectively.’ In managing this process, the author encourages neutrals to choose words that make a distinction between the roles of the facilitator and the group members; and avoid judgmental words that ‘contain some built-in evaluation, implying that the facilitator either approves or disapproves of... [an] idea.’. He further recommends that the facilitator decline assignments when he or she cannot be substantively neutral because he or she has strong feelings about the subject matter of the dispute.
If the parties agree to an outcome that the mediator believes is unwise or against public policy, like a racially-discriminatory hiring policy at a unionised manufacturer, Stulberg suggests the mediator protect his or her neutrality by using what is now often called ‘reality testing’ questions.
Noll, while recognising the mediator is a moral agent in the mediation process, stops short of requiring the mediator to assure an outcome that meets any standard of fairness independent from the standard on which the parties agree. Mediators concerned about the fairness of the outcome can withdraw from the mediation at any time or question the parties about the standards of fairness they intend to apply to the agreement or proposal. In attempting to regulate these types of biases, we ask mediators to commit to a very broad vision of party self-determination, including the right of parties to make dumb, ill-informed, selfish, and legally unsound decisions. It asks mediators to accept parties as competent adults capable of running their own lives with great wisdom, even if the outcomes do not reflect the mediator’s perspective or expected outcome.
The last part of the workshop provides participants with the third and fourth steps in the learning process: retaining and recalling, and transferring the knowledge to a new situation and solving problems. In the workshop, I ask participants to review and analyse thirteen grievances filed with the Florida Mediator Qualifications Board (MQB) relating to mediator impartiality. This exercise allows participants to assess whether they understand, retain, and can recall the concepts I have presented. It also invites them to apply the concepts to a new fact pattern.
Each buzz group gets a copy of one of the thirteen grievance scenarios. I instruct the buzz group members to identify the source or sources of the alleged mediator bias. I also instruct the members to identify the procedural justice factors that seem missing or that the mediator allegedly compromised.
In closing, I remind workshop participants that parties may perceive partiality or bias even when the mediator’s conduct indicates it does not exist. At the same time, I suggest that unhappy parties would probably not file a grievance against a mediator unless the mediator has also compromised two or more procedural justice factors. I hope that this comment reinforces my sense from reading all the grievances filed in Florida that good practices –consistent with the elements of procedural justice will help mediators avoid complaints from unhappy parties. More importantly, they will consistently provide parties a much higher quality mediation experience.
I have structured the curriculum around fairly narrow learning objectives because of the two-hour time limit imposed on the workshop.
Moreover, the workshop could use participant expertise to develop the ‘ideals’ of the mediation field or profession. It could also compare the ideals and core values of two other professions – say the legal and social work professions – to reinforce the distinctions that exist between the professions and, perhaps, help workshop participants further understand the reasons for the ethics rules governing mediators. The workshop could also highlight the challenges professionals face in the legal and social work professions as they try to practice ethically. These challenges include ‘power, arrogance, greed, misrepresentation, impairment, lack of conscientiousness, and conflict of interest’. This discussion could highlight any overlap that exists with the mediation field or profession, especially in the area of conflicts of interest, self-interest, and institutional constraints that pull practitioners away from the ideals or core values of mediation. Moreover, the workshop does not permit a more in-depth discussion of mediator impartiality under different organisational matrices or theories. It also does not permit higher-order thinking about the ‘fairness’ debate or the risks to mediator impartiality of a more evaluative style of mediation. Either topic could serve as the focus of follow-up workshops. In addition, the workshop does not explore how the mediator might discuss neutrality in his or her agreement to mediate or in the opening monologue. It does not develop the skills a mediator may need when accused by a party of partiality or bias. For instance, several authors describe the need to invite parties to let the mediator know when the party perceives bias. The mediator can then discuss the situation with the party. If they can resolve a misperception about the mediator’s impartiality, the mediator can continue in the process. If the perception remains, the mediator will need to withdraw. No two-hour workshop could cover all these additional topics, but a trainer could explore them over a series of workshops.
Fifty participants in the Spring 2008 VMN workshop provided written evaluations. Of those evaluators, 28 rated the content, organisation, and teaching techniques as ‘excellent’, 16 rated those three aspects of it as ‘good’, and six rated them as ‘fair’. Only one participant rated the teaching techniques I used as ‘poor’. Finally, participants recommended that in the future I provide in the handouts copies of the Power Point slides, and that I make sure to use the microphone during all aspects of the presentation.
As I gain more experience as a mediator and hear the comments and stories of other mediators, I continue to refine it as a teaching tool. While I may continue to revise its organisation, I believe the four-quadrant approach to identifying sources of mediator bias provides a tool that allows mediators to resolve ethical dilemmas quickly and with greater assurance than other tools that exist. It does not, however, substitute for a careful reading of the ethics code that applies to the practising mediator.
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URL: http://www.austlii.edu.au/au/journals/LegEdDig/2012/12.html