Saturday, January, 26, 2013
Mediation is generally understood by the public as an informal process during which a third party with no power to decide helps the disputants try to reach a mutually acceptable settlement. With this definition as a backdrop, the importance of the mediator’s neutrality cannot be over-emphasized. Thus it is imperative that the mediator avoid even the perception of bias.
Expectations for Mediators
A party to mediation should reasonably be able to expect that the mediator has the ability to set aside any personal bias with respect to the dispute and the parties. Indeed, it could be viewed as hypercritical of the mediator to admonish the parties to separate positions from interests if the mediator is unable to set aside a personal bias and maintain neutrality. If the mediator is unable to do this, the parties have the right to expect the mediator not to undertake the matter, or to withdraw should the bias manifest itself after the mediation has commenced. As an ethical matter, these are aspirations for which a mediator should strive. Indeed, these expectations are incorporated in many of the ethical standards that have been adopted in various jurisdictions across the country.
A mediator is always making evaluations during mediation: what questions to ask, what to disclose to a party, how to deal with the emotional aspects of the dispute. Considered in this context, the significance of a mediator’s neutrality is illuminated. However, mediators are human and therefore maintaining neutrality will not always be an easy task, particularly in caucus mode. In a caucus, the mediator has an opportunity to manipulate parties into agreement because the parties are not engaging in direct communication and are thus unable to test the accuracy of information received or given. A mediator must recognize the power to influence and affect the outcome in caucus and accordingly the need to maintain neutrality. It should be recognized that maintaining neutrality has its limits; given the way our unconscious minds operate, no mediator can hope to achieve perfect neutrality. Since no other field in the realm of social science can claim perfection in this regard, mediators should not be expected to adhere to an unrealistic standard of perfection. Instead, the mediator should use reflection and realization of the need for neutrality to constantly aspire to personal growth in this area