Mediator Neutrality: An “I believe . . . ” Test

By Donald L. Swanson

A mediator is, by definition, a “neutral.”

Neutrality seems to be a straight-forward concept: it means not-taking-sides.

But not-taking-sides is, apparently, not all that simple. Check out this excellent article and this fine series of essays on the subject.

Efforts to define or explain “neutrality” often get bogged down. Sometimes, new explanations of what “neutral” means create more ambiguity or uncertainty than already exist.

Non-Neutral Behavior

Here are some examples of behavior that run afoul of the neutrality standard.

–Mediator: “My law partner is an expert in this area. So I’ve asked him to critique your expert’s report. Here’s how he says your expert’s opinion is faulty.”

–Mediator: “Here’s a list of terms that everyone else has agreed upon. This is a great deal, and you must accept these terms.”

–Mediator: “Your legal position is way off base on this issue, and you are going to lose at trial.”

Each of these examples is from an actual anecdote from attorneys talking about bad experiences in mediation.  In each of these examples, the mediator is viewed as taking the other party’s side.

An “I believe …” Test for Mediator Neutrality

Whenever a mediator says something like the following quote, the mediator’s neutrality is compromised:

“Here’s what I believe about the merits of your case: [___fill in blank____].”

An expression of personal opinion on the merits of the dispute is “taking-sides.”

There are probably a million-or-so ways a mediator can convey the same type of message, while still maintaining position of neutrality: i.e., without giving a personal opinion on the merits.

For example, a mediator could say:

–“The other side’s position is . . . [then fully and faithfully explain that position].”

–“The other side says this about your expert’s opinion: . . . ”

–“Here’s one of the risks you run–that the judge will accept the other side’s version of the facts. And here is the evidence they’ve identified . . . ”

–“If you lose on that issue, here are the range of results that have been identified . . .”

–“I know you are confident in your case at trial. But your opponent is also confident. And here’s why . . .

–“Here is a risk that each side runs: that the judge will get it wrong, from your perspective. And ‘getting it wrong’ happens, as reflected by reversals that commonly occur on appeal.”

All of these examples are neutral responses that don’t take sides.

A mediator might even say to a party in caucus something like: “My experience is that judges rarely . . . ”

–Such a statement can be a neutral observation that helps the parties but doesn’t take sides: it’s talking about objective experiences, and not about the mediator’s opinion.

Such responses can be used by a mediator to clearly and effectively convey hard truths, without the mediator injecting his/her own opinion on the merits of the dispute.

Analogies

The following are some analogies that illustrate neutrality (good analogies) or provide a contrast with neutrality (bad analogies).

Good Analogies

The best analogies for what mediator “neutrality” means are from informal contexts. For example:

–a parent handling a squabble between siblings, when the parent avoids taking sides in the spat, is a good neutrality analogy.

–a friend trying to help solve a misunderstanding between two buddies, without taking sides, is also a good analogy.

Bad Analogies

Judges, referees and umpires, however, are bad analogies for mediator neutrality.  Here’s why:

–because the job of every judge, referee and umpire is to make decisions on the merits of disputes, and every decision on the merits favors one side over the other

Hopefully, every judge, over the course of a bench trial, will leave an impression of impartiality, even-handedness, and good judicial temperament.  But it won’t be an impression of neutrality.

–At the end of trial, the judge will make a decision that is anything but neutral.  A judge’s judgment will almost always favor one side over the other.

Similarly, every basketball referee will make decisions on who fouled whom.  None of such calls is neutral.

–Some of the decisions will be close calls: e.g., when a violent collision occurs during a drive to the rim.  Is that a charge on the offense, a foul on the defender, or a no-call?

–Hopefully, over the course of a game, the cumulative effect of a referee’s calls will leave an impression of impartiality and consistency, but every call favors one side over the other.

Likewise, every strike / ball call by an umpire favors one team over the other.  It’s not a neutral call.

–But consistency on the location of the strike zone will leave an impression of impartiality and fairness.

Mediator Neutrality

A mediator makes many decision and many communications over the course of a mediation. Most of such decisions and communications are about handling the mediation process and managing the parties, their conflict, and their negotiations.  And some decisions and communications will convey hard truths to the parties.

But a neutral mediator must not convey an impression of taking-sides by offering an “I believe . . . ” opinion on the merits of the dispute.

An  often-perceived exception occurs when a party asks, in caucus, for the mediator’s candid opinion on the merits of the dispute. But even in this context, the mediator who weighs-in with such an opinion is on dangerous ground.  See, e.g., this article.

Conclusion

Neutrality is an essential quality of a mediation. A mediator can be active and forceful and convey hard truths– and still remain neutral. It’s the “I believe…” input on the merits of the dispute that compromises neutrality.

What do you think about this “I believe . . . ” test?