How Procedures Compromise Mediator Neutrality

As mediators we are taught  to attend to the physical environment as a way to emphasise our neutrality. We consider the seating arrangements, the layout of the plenary room, the size and quality of the private rooms, the supply of refreshments and other provisions and we do so to ensure neither party feels disadvantaged nor treated more or less favourably. It is through these and other procedural aspects of mediation that neutrality is largely maintained. However, when we enter the opening plenary and solicit the parties opening statements the claim of neutrality begins to unravel.

Solicitation of Opening Statements In Mediation

It is a perennial question on every mediation training, ‘which party goes first’? The stock reply is always ‘the claimant goes first’. We’re taught never to present the parties with the option of choosing who goes first for fear of ending up in an impasse before the mediation even begins.

At this early stage the mediator can be seen to compromise his or her neutrality by making a unilateral decision to control the order of opening statements. In doing so they unintentionally favour the claimant, or possibly disadvantage the claimant, all in the interest of mitigating a situation that the mediator may find uncomfortable or awkward. In deciding who goes first in the opening statement the mediator invites the first party to set the ‘moral stage’ for the mediation and as they do so they characterise themselves as ‘good’ and right’ and the other side as ‘bad’ and ‘wrong’.

Some commentators suggest that the order in which a mediator solicits the opening statement  illustrates one instance of mediator bias. Referring to Cobb and Rifkin’s work  on Narratives in Community Mediation, Professor Isabella Gunning argues that the first story becomes the dominant narrative and is positioned in a positive light, the party responding is forced to compete with this dominant narrative . Unless the mediator actively assists the responding party in promoting an alternative narrative, the mediator inadvertently reinforces the dominant narrative, and as Cobb and Rifkin claim, the mediator fails in facilitating a neutral process.

Mediation Party Empowerment

Is it fair to provide additional support to a party that is disadvantaged in some way? It could be that a party has no legal representation compared to their adversary, who has a whole team of legal advisers. Or it could be that a party is struggling to manage emotions and find it difficult to articulate coherently their needs and concerns. These are typical scenarios in mediation and without active support from the mediator one could say these parties are denied the opportunity to fully represent themselves and their views. One writer supports the notion of party empowerment through partial intervention, arguing that in order for decision making to be consensual mediators must ensure parties can represent their own needs and interests even if it requires the mediator to be partial and intervene when they perceive there to be an imbalance of power between the parties.

It seems many in the mediation profession would support this practice and yet still espouse neutrality of process which raises ethical dilemmas as some commentators have argued. It has been said that if a mediator seeking to balance power acts disproportionately by assisting a weaker party, they not only create a perception of bias but undermine their claim of neutrality.

Mediator Bias

In one specific case study where a party in a mediation raised an accusation of mediator bias, after reviewing the video transcript they  discovered specific behaviours that reinforced bias arising out of the mediator’s endeavour to redress a power imbalance. They observed the mediator using conversational strategies such as ‘continuers’ to assist the less powerful party tell their story. They also noted how the mediator intervened using what they described as ‘scepticism markers’. These were comments made to one party in a particular  tone and with a particular expression that were viewed to be of an accusatory or sceptical nature. These interventions were later cited by the party as contributory factors in their accusation of bias towards the mediator.

In the study described above, the mediator noted that one party seemed less articulate and was ‘fidgety’ in their pre-mediation meeting. These observations led the mediator to conclude this party was less competent than the other and would therefore require additional support. It is highly likely that different mediators will use different criteria to determine which party is more or less powerful and not only that it’s doubtful these criteria will be shared with both parties. In this example, deciding to empower the perceived ‘weaker’ party without sharing this information could deny the ‘stronger’ party the opportunity to object to the process of empowerment would lead to a conflict with the core value of self determination. This further emphasises the dilemma mediators face when it comes to neutrality.

One commentator suggests that social, economic or psychological inequalities are valid criteria to justify mediator intervention in order to create a level playing and promote fair settlements. However as we will see later, often such criteria are determined outside of the mediator’s conscious awareness

Nudging Parties in Mediation

Another example of how procedural mechanisms in mediation undermine the claim of neutrality include interventions that ‘nudge’ the parties towards settlement . Bush and Folger, authors of The Promise of Mediation argue that a more ‘settlement orientated’ approach promotes and encourages a mediator to move and cajole parties towards points of agreement, common ground and ultimately a settlement.

In this settlement orientated approach Bush and Folger suggest that a mediator acts to minimise the expression of negative emotion, discourage parties to discuss past events and keep the conversation on future outcomes. This directive approach further illustrates the subtlety by which processes in mediation promote situations of procedural bias and challenge the theoretical notion of neutrality.

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