When I conduct a mediation, I always take steps to ensure all participants feel that I am treating them with respect and with equal consideration. I consider it a mediator’s primary job to be trustworthy, neutral and unbiased. What that means is I do not show favor to one participant over the other. To make sure people feel comfortable, I go so far as to alternate the order in which I list the participants’ names (on emails and agreements, for example).
I warn mediation participants that some of the tasks mediators necessarily perform may make a participant question the mediator’s neutrality. These situations generally occur when the parties choose to be in separate rooms. Most mediations where participants do not have attorneys with them are conducted with the participants in the same room, unless there is a significant conflict between the parties, or the parties reach a point in the mediation where being in separate rooms may facilitate resolution. Many mediations that occur with attorneys are conducted largely in separate rooms, so counsel can freely provide legal advice to their clients. Whether the participants are together or in separate rooms is generally a decision left to the participants.
Some examples of scenarios where a mediator may appear biased when they are not, are:
- When parties choose to be in separate rooms during a mediation, the mediator has the task of conveying to all participants each participant’s positions and one participant’s opinion as to the weaknesses in the other participant’s positions. The mediator must relay this information, so all participants understand each other’s positions and have the opportunity to rebut any misunderstandings. What a participant in a separate room is not able to see is that the mediator is also conveying that participant’s positions to the other party in the same way. The mediator attempts to convey all positions in a favorable light, as all participants would want their positions conveyed.
- It may also seem that a mediator is biased when he/she asks challenging questions or plays “devil’s advocate.” Mediators do this to help mediation participants think about their dispute in another way and/or to help the mediator convey a response to concerns the other party is raising.
- If it is true, mediators may also convey their impression that the other participant is negotiating in good faith, as intention is something that is not obvious when participants are in different rooms.
- It is sometimes not feasible or necessary to spend exactly the same amount of time with each participant. Sometimes, only one participant provided significant information prior to the mediation. In other cases, one participant may need more time to process and consider proposed settlements. When a mediator is with one participant, it often seems like a very long wait for the other participant; I warn people of this perception and ensure them I will spend as much time as they need with them as well.
- In certain instances, it is appropriate for a mediator to offer their opinion about a party’s claims. When mediators give their opinion as to the merits of a case it is called “evaluative mediation,” and it is a recognized type of mediation, not indicative of bias. If an opinion is given, it is done privately with the participant in question, so as to not cause any embarrassment to a participant or provide any advantage to the other participant.
Depending on the nature of the mediation, mediation can be emotional and raise negative feelings. Your mediator is there to make the process easier. If you have any concerns about an action the mediator takes, ask him/her. The mediator will likely have a good explanation that will make you feel better about the process.
Alona M. Gottfried is a mediator and attorney in Arizona. If you have questions about mediation, she can be reached at: 480-998-1500 or alona@sglawaz.com. This is a general interest article only and is not intended to be legal advice. See a legal professional before making legal decisions.
Simmons & Gottfried, PLLC
8160 E. Butherus Dr., Suite #7
Scottsdale, AZ 85260
480-998-1500
