Wisely Choosing a Mediator: Mediator Impartiality
I have discussed this topic, one of the core values of mediation, in a much lengthier law review article: Teaching the Ethical Values Governing Mediator Impartiality Using Short Lectures, Buzz Group Discussions, Video Clips, a Defining Features Matrix, Games, and an Exercise Based on Grievances Filed Against Florida Mediators, 11 Pepp. Disp. Resol. L. J. 309 (2011). You should be able to download it here.
Greg Firestone, a Florida mediator, spoke about mediator
impartiality at the October 2003 conference of the Association for Conflict
Resolution. He suggests you think about
these issues along two dimensions that create four quadrants on a grid. One
side of the grid are the terms “parties” and “outcome.” On the other side of the grid are the terms
“relationship” and “conduct.” The
resulting four quadrants are: “relationship-parties,” “conduct-parties,” “relationship-outcome,”
“conduct-outcome.” In searching for a
mediator, you want someone who can maintain impartiality in these four
quadrants. The leading cause of ethics
grievances filed against mediators in Virginia
and Maine
relate to impartiality. It is the second
most frequently cited basis for grievance complaints in Florida , Georgia , and Minnesota .
Mediator's Bias Arising Because of the Relationship to the Parties
The
mediator’s impartiality towards the parties is often discussed in terms of
conflict of interests. When choosing a
mediator you need to learn if the mediator has any current or prior
relationships with the parties or their counsel.
Does she accept referral fees from lawyers who regularly use her in mediation, therefore consciously or unconsciously creating a bias in favor of the referring attorneys and their clients? Does she get most of her business from one
company or firm? Can she remain impartial
to the party who is not the repeat player in the referral system? Does the mediator sit on a Board with one of the parties? Share the role of a church trustee with the other party? Represented one party in a prior legal matter? Exclude anyone that has a relationship you
feel may bias the mediator towards the party with whom he or she has had a
prior relationship.
Mediators should
error on the side of over-disclosure of conflicts of interest or potential
conflicts of interest. They should check
for conflicts with the same care imposed on lawyers by legal ethics rules.
Mediators must also avoid creating any
conflicts of interest during the course of the mediation – for instance, by
buying stock in the company owned by one of the parties.
Finally, mediators should avoid creating an
appearance of impropriety by representing parties as a member of their
profession of origin (i.e, lawyer, therapist, or accountant) in the future, in
the same or similar matter. Most ethics
codes either prevent future representation in the same or similar matter or
they limit future representation until a reasonable period of time has lapsed
since the mediation. It is fair game for
you to ask a mediator how he handles the future conflict of interest issues?
Mediator's Bias Arising Because of the Conduct or Attributes of the Parties
Next, you
need to consider whether the mediator can maintain, through his or her conduct,
neutrality towards the parties when he or she has problems that arise from the conduct or attributes of the parties.
Will the
mediator become frustrated, disrespectful, or heavy-handed if he or she
believes you or your client is uncooperative?
Does he hold any racial or cultural biases? Can he work with people that express racial
bias? Does she think in traditional ways
that may impose gender biases or reinforce gender-role expectations in the
mediation? Does anger make him uncomfortable
in a way that he may cut off your client’s expression of it? Does crying make the mediator uncomfortable
in a way that he may suppress the expression of sadness, fear, vulnerability,
regret and other emotions expressed in this way or other ways? Can she work with borderlines, narcissists,
sociopaths and other high conflict personalities without those parties pushing
her buttons or manipulating her? Does
her conduct favor repeat players or parties who may be paying a larger portion
of the fee.
The mediator should be
willing to withdraw from the mediation if the parties perceive she is no longer
impartial towards each party.
Mediator's Bias Arising Because of his/her Relationship to the Desired Outcome
The next quadrant helps us think about the mediators relationship or bias in favor of a particular outcome even if it is a settlement at all costs.
Does the
mediator brag about a high settlement rate? Will he work hard for his
settlement rate even if it requires coercive interventions that disfavor one
party? Has the mediator succumbed to
perceived pressure from referring courts to maintain a high settlement rate?
Does he have a vested interest in the
outcome because his fee is based on a percentage of the agreed settlement? “Lawyers should decline to retain a mediator
whose fee is based on a percentage of the ultimate settlement [where not
precluded by the ethics code]. [I]t
smacks of impropriety and at the very least, raises serious questions about the
mediator’s ability to remain neutral.”
Does he unnecessarily prolong a mediation just to earn additional
fees?
Does she believe that all civil
rights related mediations must result in an agreement consistent with Title VII
law? Can he mediate with impartiality
as to the outcome in an air pollution case if his son suffers from severe
asthma? Can she mediate with
impartiality an abortion clinic real estate boundary dispute if she opposes
abortion? These questions highlight the concern that a mediator will push a party towards a particular outcome because the mediator consciously or subconsciously prefers that outcome.
Mediator's Bias Arising Out of his/her Conduct Affecting the Outcome
Finally,
this last quadrant of the grid focuses on party self-determination and a
mediator’s conduct that undermines it.
The mediator may lack skill in supporting party-self determination. She may also not care very much about it or
truly respect it as a core value of mediation.
Thus, he or she may use coercion, intimidation, or other heavy-handed
tactics to get an agreement? She may
rely too much on her legal skills by offering legal advice. He may add terms to the settlement agreement
on which the parties have not agreed?
Conclusion
Choosing
the mediator is the most important decision you will make on behalf of the
client who plans to participate in mediation.
Make the choice wisely and with care.
What factors do you consider important in the choice of a mediator? I'd like to know.
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