Here’s me trying to persuade another mediator that she’s not being impartial if settlement is her goal.  I’m not going to be able to persuade her, but what do you think?

Dan:  So when you mediate, you try to settle the case, right?
Other Mediator:  Of course.  What else would I be trying to do?
Dan:  Well, let’s get to answering that question later.  But let me ask you this:  Are you being impartial when you try to get the case settled?
Other Mediator:  Absolutely.  I’m trying to get both sides to settle.
Dan:  But surely your efforts don’t impact the parties equally.  Surely one party is likely to be more influenced by your efforts than the other?
Other Mediator:  Please don’t call me Shirley. And I suppose that’s true, but they have their lawyers there to protect them.
Dan:  Ok.  So it’s not that you’re impartial, it’s that the lawyers protect them from your partiality.
Other Mediator:  Well realistically, there’s no such thing as neutrality.  We all have our biases.
Dan:  I agree with you about that. But I actually think transformative mediation creates the possibility of real impartiality, though not neutrality.
Other Mediator:  Oh? And how’s that?
Dan:  Since I’m not attached to any particular outcome, I can be completely supportive of all parties at all times.
Other Mediator:  Really?  I thought you’re trying to get them to transform.
Dan:  Understandable mistake, because yes, it is called transformative mediation, but I’m not trying to get them to transform.
Other Mediator:  Huh?
Dan:  It’s called transformative mediation because it often leads to parties’ interaction changing from destructive to constructive, but it’s not that I try to get that to happen.  It just happens, partially as a result of my efforts.
Other Mediator:  You lost me.  It happens as a result of your efforts, but you’re not trying to make it happen?
Dan:  Yep.
Other Mediator:  Ok, then what is it that you are trying to do, if you are not trying to transform something?
Dan:  I’m trying to support their efforts at decision-making and at understanding each other.
Other Mediator:  Ah hah!  So you DO have a bias.
Dan:  Absolutely I do.  I believe that parties want to make their own decisions and want to understand each other.  I also believe that those things only genuinely happen if they are done by the parties, not by me.
Other Mediator:  Weird.  Ok. but isn’t it true that just as my efforts might affect clients unequally, yours might too?
Dan:  Yes!  I suspect my efforts never have exactly the same impact on both sides.
Other Mediator:  Ok, so you’re not impartial either!
Dan:  Here’s why I still claim I am impartial.  My efforts are not directed toward settlement, nor toward balancing the power, nor toward solving the problem.  They are directed at helping each party make their own decisions about what to do and about how to relate to each other better.  Even if my efforts affect one party much more than the other party, both parties benefit from that change.  Let’s say one party doesn’t shift a bit, but the other party gains a greater sense of control and a greater sense of understanding of the other party.  That party who has shifted is then more likely to handle the situation in a way that both takes good care of that party and that is responsive to the other party.
Other Mediator:  OK, but what if that party who has shifted decides to use his shifts only to benefit himself?  Haven’t you helped that party at the expense of the other?
Dan:  I guess that’s theoretically possible, but I don’t believe that’s how it works.  I believe the party that shifted is now less likely to behave in a way that is destructive to either himself OR the other side.  Meanwhile, I’ve remained completely supportive of the non-shifting party too – I’ve put no pressure on him – I’ve not tried to get him to do anything – the only difference for him is that he’s now dealing with a stronger and more responsive party on the other side.
Other Mediator:  If one side is now stronger, isn’t that bad for the other party?
Dan:  The kind of strength I’m talking about includes the tendency to make better choices all around, and tends to bring with it greater ability to take the other side into consideration.
Other Mediator:  Wow, you’re making some pretty optimistic assumptions about human nature!
Dan:  True.  Of course, you’re making assumptions, too.  You’re assuming that people are purely self-interested.
Other Mediator:  Ok, that’s enough of this conversation for now.
posted by Dan Simon

No Comment

Comments are closed.