Did you ever have a need to strike a balance between helping the parties reach a settlement and achieving equity?


Stephen Thom


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When that happened did you work with the community to help them understand that they could be asking for more?

Answer:
You know, I didn't know if I would overstep my bounds in that situation. I thought it was incumbent among the community to decide what it wanted. The opportunities were there. They needed to say what they wanted and needed and I felt that if I prompted anything it would be perceived that I had lost my neutrality and I was pulling stuff on the table in front of the county sheriffs. I felt they had a much stronger position then they recognized.

Question:
Could that be shared in preparing them to come to the table?

Answer:
I thought I was dealing with a fairly sophisticated group and I didn't think I needed to do that, but it wasn't something I openly shared with them.






Nancy Ferrell


 [Full Interview] [Topic Top]

Question:
I want to talk a little more about the neutrality/impartiality issue. Did you ever find that you had to walk a fine line or strike a balance, between helping the parties reach a settlement at all and coming up with a settlement that either you or they thought was fair and equitable?

Answer:
I think it's in the mediator's responsibility and ethics to have a clear belief that the parties understand what they've agreed to. And if it's fair to them, then that's legitimate. But if I'm concerned, then I need to go with that concern to make sure that I'm confident the parties understand what they've done. If they do and they're still ok with that, then I don't have any right to determine or say, "do you realize what you've just done?" That is biased, but as an ethical issue, and certainly as a private mediator I have a responsibility to make sure you're competent to make that decision and that you understand the decision you made. In a divorce situation, one of the parties will say "I just want out, let them have everything." If you're sure that they are really competent to make that decision and they understand what they're doing, it's not your business to say, "are you kidding me?" It's a common property stage, "You get half, "I don't care and I don't want it. I don't want to deal with that, but you're ethically obligated if you don't believe they're emotionally competent even, to say, "Why don't you get some advice and why don't you go talk with someone first, consult your attorney and let's come back next week." I think you're obligated to do that. And I would say the same thing in a community dispute, if you think one party really doesn't understand what they're doing, then it would be critical to refer them to somebody for coaching or insight. I may do it in a private caucus with the community group, because everybody knows I've been working with everybody. I may talk more specifically about what this decision may mean, what it's going to cost down the road, and what's the impact on the community long term. The community may agree to something that it financially can't live up to. You've just agreed to this, but where's the money going to come from? I think that's legitimate in a caucus situation. Also, unless a decision is violating law, it's their decision, they're competent to make them and they understand what they're doing. One of the hard parts is when you know something they may not be aware of and you can't really say anything because of confidentiality. The best you can do then, is refer them for some guidance and counsel. The impartiality/neutral thing we struggled with that for years. Basically, the conciliators/mediators were not comfortable saying we were neutral. Because we were not neutral in terms of civil rights law. Being impartial to the outcome and impartial to the parties meant that we were serving both equally and fairly. Being neutral meant no interest and we did have an interest. Our interest was civil rights law. We were trying to bring the parties to a voluntary compliance with that. We became much more comfortable with the word impartial third party than neutral.







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