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”.