By Euan Davidson
One of the most difficult aspects of being a mediator is trying to ensure that you not only remain impartial at all times but that you are seen to be acting impartiality by all the parties involved at all times. Understanding the difference between being impartial and being seem to be impartial is crucial to the success of the mediation process as well as to understanding of why some cases break down.
Every mediator needs to constantly remind themselves of the need to be impartial. You need to avoid the temptation to associate with one party or to feel sorry for them whilst still ensuring that you try to understand and empathise with each person’s perspective and situation. You need to be aware of any potential natural biases that might surface, whether this be linked to gender, age, race, life choices, hobbies, habits or any of a large number of traits that might either consciously or subconsciously lead you to favour one party over the other. However, I would suggest that it is not too difficult with a bit of practice to ensure that you act impartially at all times and regular supervision, co-mediation with other mediators and plenty of reflection will all help you to avoid developing bad habits or approaches that could lead to a loss of impartiality.
The real issue relates to trying to ensure that you are seen to be acting impartiality by all parties and when I say all parties I include not just the clients but their solicitors, their family members, their friends and anyone else who might have any influence over them. There are countless reasons why one or more of these people will start to question a mediator’s impartiality. Some of the classic ones are:
1. Shoot the messenger: sometimes a client will accuse the mediator of losing their impartiality if that party feels that the mediator has delivered some less than positive news. For example, if one client believes that their offer for a financial settlement is fair but the actual figures calculated by the mediator clearly demonstrate that the settlement is in that party’s favour then the mediator has a duty to not only point this out but also to question whether this is the sort of settlement that a court might be prepared to entertain. This is a good old fashioned case of shooting the messenger.
2. My solicitor said: on occasions a client’s solicitor can be banging the war drum behind the scenes and be looking for any way to derail or destabilise the mediation process, possibly to increase the acrimony, perhaps even in the hope that the case will go to court and therefore result in plenty of legal fees being accrued. This can lead to the solicitor advising the client that they believe that the mediator has lost their impartiality whenever a suitable opportunity arises, which then leads to the client finding it very difficult to trust either the mediator or the mediation process.
3: Chinese whispers: we all perceive reality in different ways and it never ceases to amaze me how 2 people can listen to the same information but then interpret it in completely different ways. From the perspective of mediation, this can lead to one party selectively hearing what they want to hear and then interpreting this information in a way that fits their position and then share this with a confidant who then themselves selectively hears and interprets this information. Before you know it, the end product bears little or no resemblance to what was said or what took place in the mediation process and I would say that this rarely leads to a positive dynamic. As mediators we can but hope that those people who are being given the trust of the parties involved are able to help the parties to properly reflect on the situation rather than taking what they are told at face value and, worse still, becoming part of this chain of misinformation.
4: Conflict of interest: it is always very dangerous to mediate for clients when one or both of them either directly or indirectly know the mediator. Even if both parties are aware of a potential conflict of interest and agree to mediate despite it, there is always the risk that one or both parties will use this to attack the impartiality of the mediator at a later date, especially if that party feels that the discussions might not be working out in their favour.
5: Clash of personalities: we all know that you cannot please everyone all of the time and, despite a mediator’s best efforts to be professional and polite at all times, there will inevitably be occasions when a client will simply not like the mediator or when the client finds the mediator’s character difficult to deal with. It is easy in these situations for the client to allow this clash of personalities to become a reason to question the impartiality of the mediator.
There are undoubtedly many other reasons for a mediator’s impartiality to be called into question and it would be fascinating to hear lots of other views on what some of these might be but I hope that by writing this post it will help more people who are involved in the mediation process, ranging from the mediators to the clients and their advisors, to really consider carefully whether there is actually an issue with the impartiality of the mediator or whether there is instead an issue with the perception of the mediator’s impartiality before taking any steps that might derail or destabilise the mediation process.
Thank you for taking the time to read this post and I look forward to reading your comments.
Godalming Family Mediation