To finish the discussion about mediator neutrality (or impartiality – an equivalent term for purposes of this discussion), I’d like to discuss how a conflict resolution professional might react when his neutrality is challenged during a long-term, multi-party mediation or facilitation. This has happened to me more than once doing environmental/public policy work. These challenges have been made, for the most part, for strategic reasons. Simply withdrawing from the case was never really an option (as one might do for a limited, one-meeting case).

In many complex, multi-party mediations, one or more of the parties are fighting a delaying action and do not want the negotiations to result in a compromise or consensus agreement. They want the other side to lose, pure and simple. If the mediator has to deal with complicating factors (beyond simply managing productive meetings), the process will become more cumbersome, it will slow down and may ultimately stall from its own inertia. One complicating factor is an accusation that the mediator is biased toward one side of the dispute or another. Such an accusation may be made to the other members of the group, to the mediator’s superiors and, perhaps most seriously, to the press. Any mediator who wishes to continue facilitating the group’s discussions must respond effectively to the challenge without actively engaging the party making it.

I’ll start with the challenge to the group. Since I spent several years as a neutral who was paid by County government, parties sometimes charged me with advancing the county planning agenda. The county and I had anticipated this situation by putting me outside the chain of command of the planning department. My direct supervisor was an upper level county manager who was also the superior of the planning director. Although this gave me some buffering from this charge, a better way to answer it was to simply put it to the group as a whole and ask them if they felt I was other than neutral in my approach to the group. I am happy to say that this approach worked for me. The groups as a whole (aside from the one party challenging me) always supported me as a neutral, and the discussions continued.

Next is the challenge to a superior. My best story about this involved a group convened to discuss the possible addition of a new access road to an already approved and operating rock quarry. At the very first meeting, a member of the group who lived near the quarry said: “We’re here to shut you down”. I politely but firmly corrected her, letting her know that neither our facilitated process nor any later decision by the County Commissioners could have that result, since the operator was only asking for an amendment to his zoning, not approval for a new operation. The woman who wanted to shut down the quarry complained to my supervisor the next day. She said that I was obviously biased in favor of the quarry operator. Based on the doctrine of “no surprises to your boss”, I forewarned my supervisor of the potential complaint. When he received it, he was able to ask the proper questions of the complainant and clarify my role for her. The group discussions continued.

Finally, challenges made through the press. A calm, reasoned process is simply no fun for the media. Contentious debates make news. So, when a vocal leader of the citizen opponents to a proposed gravel quarry sought out the press and accused me of being “an agent for developers”, the reporter immediately called me to say: “Party X says you’re an agent for developers – not really a neutral mediator. What do you say to that?” (Remember, conflict makes headlines and rational discussion is boring.) I had only one course open to me. I replied that Party X was certainly entitled to his opinion, but that I was simply trying my best to help everyone communicate with each other, without showing favoritism to anyone. I suggested to the reported that she contact my supervisor (whom I knew would back me up) and/or other members of the group (most of whom would back me up) for their opinions of my behavior as a neutral. I like to think that my reasoned response was the reason she did not pursue the matter further. Again, the group discussions continued.

So, we can see that a conflict resolution professional must not only act in a way that conveys his neutrality – often he must actively defend it.

By |4:25 pm|Group Facilitation Denver|Comments Off on GROUP FACILITATION AND MEDIATION – A Few Words about Neutrality, Part III

GROUP FACILITATION AND MEDIATION – A Few Words about Neutrality, Part II

To continue the discussion about mediator neutrality (or impartiality – an equivalent term for purposes of this discussion), I’d like to now discuss the parties’ perception of a mediator’s neutrality.

It is always important to have an idea of how the parties view you, the mediator. If they initially view you as a non-neutral person (actually or potentially partial to one of the two or more sides to the dispute), you may be able to overcome this impression and proceed with the mediation – or you may not. Sometimes it is better not to even try.

The easiest of the situations is when you feel very sure the parties will have a bias against you as the mediator. I accepted an EEO mediation case from the U.S. Postal Service. When the paperwork arrived, I noted that the employee bringing the EEO action had a very unusual name (we’ll call him “Mr. X”). Within the last several weeks, I had mediated a small claims case with a party with the same name in another venue. The mediation had not resulted in a settlement, and I had the distinct impression that Mr. X strongly blamed me for that result. So, I called the person who had assigned the case to me. Without revealing any details, I said that I had reason to believe I had recently mediated a case with Mr.X and thought that he might not want me as a mediator again. I requested that Mr. X be asked if he had recently been in a mediation of any type and, if so, would he want that same mediator for his EEO case. As I suspected, when asked the question in that way, he said no, and I was replaced on the case. Although this resulted in a financial loss for me, I had no other ethical option.

For several years, I worked for a County government as a Mediator and Group Facilitator for large land rezoning proposals (mines, landfills, recreational sites, etc.). These always involved the developer/land owner and his/her attorneys and consultants vs. a host of objectors (nearby landowners, environmental and public interest groups, etc.). The county government staff was always involved in the negotiations. Although they considered themselves neutral, neither of the two major sides did. The developers saw them as in league with the opponents (their requirements being just another impediment to the proposal), and the opponents saw them as allies of the developer (after all, such a noxious proposal should have been immediately dismissed – not reviewed for possible approval). The County was paying me to be the “neutral” (because the opponents wouldn’t and the developer couldn’t) – so neither major side fully trusted me.

In this situation, I typically asked the parties for a provisional approval of me as their neutral. I pointed out that I had the advantage that my services were being provided to them for free by the County. Therefore, they could allow me to proceed for a while and “win my wings” with them – or not. Although it was sometimes tactically advantageous to attack me as the mediator during the process, I was always eventually accepted (albeit sometimes grudgingly) for the duration of the mediation/facilitation process. This experience helped me to learn that I must project my impartiality with all of my words and actions.

Subsequently, I was by a recreational district to conduct a public negotiation process related to the planned construction of a developed park (buildings, ball fields, tennis courts, parking) on land that had been traditionally undeveloped open space (although a park had been approved and planned for years). In this case, the recreational district did not have the credibility, on its own, to be trusted by everyone else to hire an impartial mediator. Once again, I was brought in, provisionally, to help the parties broker my own fee agreement. After an hour or so, a few representatives of the main groups agreed to split my fee three ways among the recreational district, an adjacent high-density homeowners group and an adjacent low density homeowners group. Given this arrangement, these three main groups were satisfied that my interests were not tied to any one side (and the results it might advocate). The parties who were involved, but not members of the three main groups were simply happy to have a paid neutral to manage the negotiations. I got paid, the facilitated negotiations proceeded, and, as it happened, a consensual agreement for the plan of the park was reached. Interestingly, during the entire process, no party challenged my neutrality.

So, in summary, party perception of a mediator’s neutrality can be tied to history, the mediator’s behavior (both initially and during the progress of the negotiations) and the breakdown of who pays for the mediator’s services. I know there are more factors, but these are three examples I have experienced during the last 27 years of being a professional “neutral”.

By |9:47 am|Group Facilitation Denver, Mediation|Comments Off on GROUP FACILITATION AND MEDIATION – A Few Words about Neutrality, Part II