Impartiality – How to Maintain It?

One of the hallmarks of an effective mediator is the ability to maintain impartiality. Both parties must be convinced that the mediator doesn’t favor one over the other. Of course many factors can explain the erosion of mediator impartiality. We would like to consider six briefly.

Expectations:
Our office speaks with both parties prior to turning a case over to a roster mediator. We want to ensure that the parties have an opportunity to thoroughly discuss the advantages and disadvantages of mediation. Sometimes that is not enough. Mediators must also help parties overcome their unrealistic expectations with respect to what can happen in mediation. When they “buy into mediation” they should be committing themselves to mediation and not some other method of dispute resolution. Mediators should continually check expectations the parties have for the process and make corrections in understanding if necessary.

Mediation settings:
Our cases sometimes depart from what many of us consider routine practice. We have been conducting telephone mediations as well as mediations in settings other than our offices. Think carefully about the consequences of holding a mediation in a place other than your office for maintaining impartiality in the minds of the parties.

Issues of law:
Probably one of the most difficult aspects of our practice is how to handle issues of law. In training, we were careful to point out that what we do or say about the law may have an impact on whether the parties view us as impartial. Always be vigilant. If, in your judgment, saying anything about the law compromises your impartiality rely on an outside expert. Sometimes a party may be testing your knowledge of the law. If they think you don’t know anything about the law, they may conclude that you cannot be impartial. Certainly we can’t know about everything but we must be able to continue to generate confidence in our impartiality and this will be determined by how we handle gaps in our understanding of the law. Often, it’s alright to say that you would like to check with someone about the question that was raised. Call us, postpone the mediation, do whatever you think is necessary to maintain the confidence of the parties.

Discrimination in the mediation:
Complainants in mediation, sometimes, accuse the mediator of discriminating against them. How does this happen? Usually, three reasons explain this. First, if a respondent is allowed to behave in a manner that is insensitive, the mediator becomes a party to the discrimination. Second, some insensitivity on the part of the mediator whether in terminology used or body language. Third, unconvincing knowledge of the law. Mediators must use whatever is necessary to avoid a party thinking that they are not impartial. One technique that works is to discuss the issue when a party demonstrates indirectly that they question the impartiality of the mediator. Usually, claims of discrimination are not brought up in the mediation. We need to look for cues that a party is uncomfortable. On evaluations when a complainant accuses the mediator of discriminatory behavior we wonder whether anything occurred during the mediation to give the mediator a signal that he or she must address the issue.

Inability to develop trust and rapport:
Parties that trust that the mediator is interested in helping both parties resolve their issue and is clear about what he or she will be doing are less likely to question the impartiality of the mediator. We all need to think about how we work on developing trust and rapport throughout the mediation. What are we doing? What are the signs in the parties that tell us that they trust us?

Thoughtful, balanced, and minimal talk:
Consciousness about what we are saying, how much we are talking and to whom often holds the key to understanding why a party might think we are not impartial. Just being aware of what is being said can be helpful.