If there are cardinal sins in mediation, mediator bias may well be number one (perhaps tied with breaking confidentiality). Nothing will end credibility quicker than the appearance that the mediator is taking a side in a dispute. But how do mediators, mere mortals (it’s true!), maintain neutrality? What tools are available to combat the very human tendency to make and pass judgment? Below are a few that might help you the next time you are in the room.
Know your role
Perhaps the most important piece of maintaining neutrality is remembering your role in the mediation. This boils down to listening to what is probably already a part of your opening statement - you are not anyone’s attorney and you are not a judge. In other words, it is not your job to defend, convince, or decide. It is merely your job to listen, elicit, and assist in problem-solving.
Rather than limiting you, this knowledge of your role should be liberating. You do not have to worry about making an argument for one side or another, nor do you have to deliberate as to who is right and who is wrong. You are freed up to merely explore the underlying needs and interests with the parties and help them come to a resolution that is amenable to each side.
External v. Internal Neutrality
External Neutrality. This is what is perceived by the parties. It includes what is said, how it is said, and also things as basic as the physical environment and body language. The mediator wants to use statements, dialogue, and process in such a way as to display the neutrality. For example, the mediator should use neutral language when summarizing. A process example would be giving, as far as possible, equal time to each party for their opening statement. In terms of physical environment, what kind of table is used, the placement of chairs, and whether the mediator is equi-distant from each party can influence the perception of neutrality.
Internal Neutrality. This is about cultivating your own experienced sense of neutrality as a mediator. This is largely about practicing mediation mindfully. Each of us is subject to unconscious bias and spaces of conflict, such as the mediation room, can trigger those unconscious biases. It is important to reflect before responding, to check in with yourself before speaking in a way that may be tainted by the inevitable biases that occur automatically no matter how practiced you are at mediating.Neutral language Finally, the language we use can do a lot to enhance our efforts at neutrality. Instead of saying, “I know that must’ve been hard for you,” use more neutral language that reflects what any person in your position could observe. For example, “I see that this has been hard for you.” The difference between these two statements is subtle, but impactful. In the first instance, you are identifying with the emotions the other person is displaying whereas, in the second, you are simply observing the emotional content.
Both of these techniques accomplish one of the underlying tasks of the mediator - to show understanding of a party’s experience. However, one places you in the shoes of the party. The other places you in the shoes of an impartial observer who can understand what is happening, but does not necessarily feel what the person is feeling. In other words, one may be read as partial or biased and the other can only be understood to be neutral.
Neutrality, along with confidentiality, is a bedrock of mediation practice. One way to short-circuit your unconscious bias is to remind yourself that your role in the room is neither that of advocate nor judge. Another is to maintain an awareness of both external and internal factors that can promote neutrality. And, finally, be aware of how the way you phrase things might be perceived as non-neutral.
Neutrality is something every mediator struggles with, but with practice it can become more second-nature. What tools do you use to maintain neutrality? Share your ideas in the comments.