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.
