In 2007, Susan Nauss Exon, Professor of Law at the University of LaVerne College of Law, raised the issue as to whether a mediator's style would affect impartiality. This is something that rarely if ever has been discussed openly. What we continually hear is discussion as to the various styles and their applicability to any given mediation. The styles generally considered are the facilitative, evaluative and directive. Sometimes we hear about the transformative style. However, generally we do not consider whether the particular style of the mediator affects the ethical requirement of impartiality that is the bedrock of the mediation process itself.
The practice of mediation still is evolving and much of what is considered to be "mediation" is in the eyes of the beholder; that individual who shows up on any given day at the assigned time and place to attempt, as the "mediator," to bring the parties together for purposes of agreeing on settlement of their dispute. As I mentioned in an earlier column, I inherited a difficult case from a series of three predecessor "mediators," the last of which was a retired judge who privately informed each side that they would prevail at time of trial. I can't even begin to define this "style," except perhaps to relegate it to the historical "head knocking" approach utilized by trial judges. So it would seem this retired judge now "mediating" probably did not have the benefit of traditional mediation training and fancied himself a "mediator" simply because he had been a
Unless one concludes erroneously that by telling each side it would prevail he maintained his impartiality because he treated both the same, it would seem he breached the ethical requirement. This is because by taking sides he abandoned his neutrality each time he declared one party or the other would prevail, even though neither knew of his declaration of projected success to the other.
In directing the parties to a dispute to come to a particular resolution, or analyzing their chances before the courts, it would seem a mediator is abdicating the required neutrality by taking sides and ignoring the expected impartiality by showing bias or favoritism for one side or the other. At the very least, this conduct of the mediator is demonstrative of the appearance of a lack of neutrality and the presence of partiality. When one considers the foundational element of party self-determination about which I have spoken, it is clear the impact of loss of neutrality and imposition of partiality materially affects that right of the parties.
The facilitative style is sensitive to the interests and underlying needs of the parties, or what we refer to as interest-based mediation, while the transformative is not as much settlement oriented as it is designed to transform the relationship between the disputants.I regularly hear counsel for the parties say to me as the mediator that I should work my "magic."
While the inference is flattering, the reality is that it implies I am in control rather than the parties. This is in direct contravention of the principle that party self-determination is the underlying concept of mediation. I consider my "magic" has more to do with the ability to get the parties to work their "magic" by coming together to reach agreement. The
more they do and the less I am involved the more successful I feel I have been in applying the process.
The problem for the mediator in establishing style is that the easiest and least time-consuming is the directive, with the evaluative a close second. It is far easier to tell someone what to do or evaluate the chances of success than it is to make the extensive effort necessary to work with the parties so they express their interests and underlying needs, consider those
of the other side, and then collaborate on achieving the most possible for each party.
The clear delineation of the lines separating these various styles becomes blurred when the mediator loses control and decides to satisfy the demands of the lawyers representing the respective parties to the mediation. I have had situations where either the lawyers have indicated they want the case disposed of through the mediation or they want to extricate themselves from the embraces of their clients. Purely and simply, they want the mediator to tell their respective clients what to do because they have the impression the parties will listen to the mediator when they have not paid attention to
their own lawyers.
My personal preference is to religiously maintain a facilitative/evaluative style while being willing to respond to the parties' requests for an evaluation by restricting that exercise to an evaluation of their settlement options, staying away from an evaluation of the merits of the case from the perspective of one side or the other. Any other approach will skew the
balance that already hangs precariously because, irrespective of what they say, each party wants the mediator on their side.
Finally, we come to the aspect of the process where the mediator may be ethically required to "balance the playing field." By this we mean the obligation to make sure to hear from the party at a disadvantage in the same proportion of time as the party who seems to be in control. Does the mediator lose neutrality and become biased in favor of one party or the other when attempting to level or balance the field? The mediator needs to tread lightly and be ever vigilant lest lack of neutrality and expression of partiality slip past the door and be heard. This would indicate that the actions of the mediator in leveling the playing field should be restricted to the private caucus rather than delivered in front of everyone at the joint session.
So the bottom line is how far does the mediator go in attempting to influence the outcome? Here the range is from the directive always to the facilitative rarely. The answer will depend on whose self-determination the mediator wants to honor, that of the parties or their respective counsel.
A. Marco Turk is professor and director of the Negotiation, Conflict Resolution, and Peacebuilding Program at Cal State University Dominguez Hills, a mediator for the California Court of Appeal (2nd District), and a member of ARC. His column appears here on the first and third Fridays. He can be reached at firstname.lastname@example.org.