Neutrality is the cornerstone of mediation. A mediator is to remain “neutral” to all parties during the dispute resolution process. This is to give the illusion that all sides are heard and respected as the parties work to a solution.
Saying you’re neutral and actually being a neutral are two different animals. It’s easy to utter the word as a magic cure all whenever your impartiality is questioned. Actually being neutral requires you to take both parties as equals and listen to them without bias or prejudice.
Consider the following scenario and see if you think the mediator in this scenario is a “neutral.”
An attorney and client are involved in a fee dispute. The mediator, prior to the attorney’s arrival, has a copy of the Rules of Professional Responsibility dealing with fee disputes printed out and placed in front of both parties, with what the mediator deems relevant sections to the dispute highlighted.
During the mediation, the neutral continually utters her neutrality while giving the majority of eye contact to the client, rather than listen to both sides equally. The mediator encourages the attorney to lowball an offer to settle the dispute. When the client disagrees with the amount and actually requests the attorney be paid higher, the mediator says “sometimes attorneys do discounted work for their friends and family.”
On examination of the work performed, the mediator makes comments to the attorney about his lack of knowledge on the relevant areas of the law, going so far as to call him “ignorant.” This mediator tells the attorney his conduct is illegal and unethical if he proceeds in a certain fashion, because that’s “the law.” Moreover, the alleged “neutral” even questions the value the attorney’s services added during certain months!
This isn’t neutrality. It’s the farthest thing from it. It’s not just evaluative case analysis, it’s not even arbitration, it’s outright advocacy for one party masked as a form of mediation. That a party can simply smile and say “Remember, I’m the neutral in all this” is a slap in the face to alternative dispute resolution.
Real neutrality takes hard work. Maintaining a semblance of impartiality is crucial to the process, and yet it takes one mediator like that described above to cost everyone their trust in alternative dispute resolution. If I had been part of such a scenario, I would have exited the bargaining table double quick, asked for a different mediator, or gone to a judge and asked for an Order of Reference if the other party could not agree to a different mediator.
Adding to the problem with the above hypothetical is the “mediator” commenting on the law, and one party’s alleged grasp or lack of expertise in that field. That violates neutrality rules, denigrates the legal profession, and contributes nothing to the public’s trust in the process. Several states, including my own, would call that sanctionable conduct for mediators.
Make sure your mediator is one who works to listen to both sides, even the one you don’t like. Otherwise, you run the risk of finding yourself subject to the bias and prejudices of a mediator who will pressure you in an unfair fashion to settle a case that will lead to buyer’s remorse on signing the deal.
And to my fellow practitioners of Alternative Dispute Resolution: repeating the words “I’m a neutral” or “I’m neutral” are hack, played out, and carry as much meaning these days as “I was in fear for my life” when a cop shoots a person dead in the street. It’s eventually going to a judge, and that judge is going to determine the mantra of “I’m neutral” carries as much weight.
A lack of neutrality, and outright advocacy, is one more reason why Mediation is Dead.