HOW IMPORTANT IS MEDIATOR NEUTRALITY ANYWAY?? by Howard Stempler

I was recently reviewing an old 2018 Mass. Lawyers Journal and in the Dispute Resolution Section Review, I came across an article entitled “Just How Important is Neutrality in Mediation?” by Jeanne Kempthorne. In the article, Ms. Kempthorne hypothesizes that mediators are rarely purely “neutral” or “impartial” and that, for various reasons she enumerates, they almost always have some “skin in the game” (the quote is a reference to the common phrase and not taken from her article). Whether mediators with any conscious or subconscious biases should recuse themselves from the mediation process is the question she grapples with throughout the article.

For example, she points to the United States’ role as a mediator of world conflicts. It cannot be said that the US (and its mediators) are neutral since it, in every instance, has a stake in the outcome. She also points to a more nuanced, and inherent, bias of neutrals in the mediation process. She asserts that mediators of private disputes—those that come before neutrals in the litigation setting—frequently  develop bias in favor or against a party or side because either a) they may subconsciously support a parties’ position, b) by virtue of their knowledge of the law or legal process, they become biased for or against a party, or c) because of a mediator’s natural leaning towards settlement, they become biased against a recalcitrant party.

Ms. Kempthorne then challenges the reader to think about what qualities parties really want, and need, in a mediator and whether perfect impartiality, if even possible, is desirable. Strict neutrality, she suggests, is “highly dependent on context and the expectations of the parties.” I would argue that neutrality in its purest sense, is most often not what parties want, would neuter the mediator, and would be counterproductive to a negotiated settlement.

So, what quality or attribute do parties actually want in their mediator?  I start with the assumption that parties, and their attorneys, have their own best interests in mind at all times and that no matter the bias exhibited by their mediator, parties will not be pushed into settling their case until, and unless, they feel it is in their best interest to do so. It is not for the mediator to know (or even care) why a claimant may want to settle their meritorious case nor what motivates a defendant with a very defensible case to pay money to conclude a matter.

I argue that trustworthiness is the key. Without trust, a mediator’s words are merely offensive sounds wafting into the ether. There can be no trust if a neutral is unable to convey their own accumulated wisdom and good judgment, coupled with strong active listening and communication skills. Parties unconsciously rely on these critical neutral attributes to reach successful outcomes. What we know is that being an effective mediator is not a passive activity. Done well, it requires energy and a keen desire to help people. It requires foresight, creativity, and patience.

I maintain that it is the mediator’s role—if not their obligation—is to press the envelope, to see how far he or she can go to help the parties expand their vision to reach a negotiated resolution. When trust exists, parties will stretch and consider creative proposals and solutions that they never would have before they entered the mediator’s conference room.

It seems to me that parties and their attorneys, in almost every instance, are counting on the mediator to provide perspective, insight, sound judgment, and a trustworthy risk analysis in the hopes that parties’ perspective and positions will be elevated from where they were when they started the day to a place they couldn’t get to on their own. However, mediators must not push parties or act in such a way as to betray the trust placed in them. Only where parties trust the mediator, are more likely to continue to negotiate towards a resolution. As Kempthorne succinctly states, “Trustworthiness is always in play”.

Having a perspective that is skewed towards settlement is not a bad thing-it’s the reason we exist professionally. Parties will only resolve a case when they and their trusted representatives believe that it is in their own best interests to do so. Our job is to help parties understand the realities and consequences of litigation and of not resolving their case through a negotiated settlement.

It is upon us as mediators, to cause parties to appreciate that mediation offers them their best opportunity to control the outcome of the case in a way they cannot in litigation. Once we have their trust, we are in a position to suggest and open the minds of the parties to creative solutions not afforded by litigation. In the end it is trust, not strict neutrality, which is the most important attribute needed to assist parties to reach a negotiated settlement.