Remaining Impartial in Mediation.

Posted on 06/03/2016 · Posted in Mediation

Impartiality and neutrality play a huge part in the role of a mediator. Under the 2008 EU Mediation Directive: ‘Mediator’ means ‘any third person who is asked to conduct a mediation in an effective, impartial and competent way, regardless of the denomination or profession of that third person in the Member State concerned and of the way in which the third person has been appointed or requested to conduct the mediation.’ (Article 3, (b)).

Yet while, of course, these legal parameters, guidelines, ethical rules and general standards of conduct that a mediator must adhere to do exist, it is also very much down to the mediator themselves to use their mediation experience and skills and, ultimately, their basic human instincts to remain impartial throughout the mediation process.

I will for ever, at all hazards, assert the dignity, independence, and integrity of the English bar; without which, impartial justice, the most valuable part of the English constitution, can have no existence”
Thomas Erskine

It is human nature to make snap decisions and judgements based on the evidence or facts put in front of us, and we do this every day with the people we meet, making instant assumptions based on how people look, talk or present themselves, what their body language conveys, how they dress and so on. This is a negative psycho-social process that is to some extent beyond our control. Despite a mediator’s professional training, he or she too is unavoidably prone to drawing these conclusions – they are human after all – yet mediators use their training and experience to put these assumptions or conclusions to one side so that they portray and communicate complete impartiality. It is an essential part of the mediator’s role to facilitate and encourage discourse and ultimately formulate an agreement between two disputing parties, so a mediator puts his or her beliefs or personal opinions aside to help steer a productive and fair discussion.

How then can a mediator practise in the most fair and unbiased way possible? It is the mediator’s responsibility to refuse any cases in which he or she cannot act impartially. Alternative dispute practitioners must always remember, even in the most innocent of circumstances, bias may be perceived if it is revealed that the mediator has had contact with either party in the past. As such it is the mediator’s duty to withdraw from these cases as not to waste the time of all those involved. This shows how neutrality must be considered and safeguarded even before the hearing has even begun.

But what about once the mediator has agreed to work on a case? Here are a few tips that may help mediators to remain impartial during the process itself:

1. Planning and structuring the mediation: By doing this, the mediator protects the parties’ empowerment and ensures equal opportunity to both sides to express their concerns, interests and needs.
2. Choosing the location of the mediation carefully: Venues, although they may not seem it, can be neutral or loaded with meaning, say for example the mediator chooses to conduct the mediation in one of the party’s offices, already this creates a power imbalance as one side will feel more comfortable than the other. Ensuring neutrality of place goes right down to seating and how the tables are arranged. Round tables symbolically have been equated with fair discussion.
3. Language: The use of appropriate language is important to ensure equality. For example in a business dispute, the use of technical jargon may disenfranchise a lesser-educated party.
4. Forming a tribunal: it is common practice in alternative dispute resolution to have what is called a tribunal of mediators. That is, three mediators that must come to a decision together. Research has consistently shown that mediators feel that working in a team helps to safeguard against bias.

Conveying impartiality throughout the mediation process poses further challenges when a mediator perhaps feels one party or individual is being particularly aggressive in the course of the mediation, or the mediator feels he or she needs to redress the power between the disputing parties if it appears unfairly balanced. A mediator will use his or her training, experience and personality to do all of this. A mediator may ‘adjust the scales’ by becoming an advocate of the weaker side and approximating them during the dispute. Whilst this practice may be considered controversial this shows impartiality being used on a conscious level, redressing it to be used as a positive tool. But one must take care to use it correctly and symmetrically. This highlights the difficult and sometimes conflicting requirements of mediation. The mediator has a responsibility to serve the interests of both parties equally, but also to remain impartial. Ultimately it is left to the mediator to use his or her intuition and personal judgement to balance these two antagonistic pressures within the process.

Remaining impartial helps keep channels of communication open and is an essential ingredient in effective dispute resolution practice.

Read more about ethical standards for mediators. Click here.

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Expert Evidence is a professional firm concentrating on the four main areas of dispute resolution; acting as expert witnesses in financial litigation, mediation, arbitration and adjudication. The firm has a civil, criminal and international practice and has advised in many recent cases. Areas of specialisation include banking, lending, regulation, investment, and tax.

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Disclaimer – Please confirm any of the above views with your solicitor. Expert Evidence takes no responsibility or provides any guarantee that the views above are correct for your particular case or jurisdiction.