Why a Mediator should NOT be involved in decision making.
There are various forms of mediation used globally, but here in England & Wales, it is predominantly facilitative mediation. What this means is the mediator controls the mediation process, facilitating discussion, negotiation, and offering constructive challenge and reality testing of any potential offers, but at no point offering opinion, advice or suggestion directly to either/any party (all of which are more akin to conciliation or evaluation in the paradyme of alternative dispute resolution).
There are good reasons for this, particularly the need to remain impartial.
In my previous article, I discussed the pros and cons of a mediator having specialist subject matter expertise and/or legal training and experience, and in this article, some of those points will be delved into a little deeper.
We all tend to feel better when we engage a professional who has extensive knowledge and experience in the field(s) relevant to our issue at hand, quite often because we want some comfort from any validation they may bring to their opinion of our perceived strength of position; some indication that we are correct, or are along the right lines.
That knowledge could be on the technical aspects of the subject matter of a dispute, or on the potential strength of our legal argument, should the dispute end up in litigation.
What we should consider, is why are we looking for this validation in the first place, especially when we are aware of so much more of the detail relating to our own case.
After viewing hundreds of disputes and disagreements as a negotiator and contracts paralegal, and applying my counselling & psychotherapy skills training to look at the psychology being experienced by the parties, I find many consider themselves to be ‘too close’ to the issue to make objective decisions, and so lean heavily on external ‘experts’ to avoid this pitfall.
There is merit to this approach, however it may not be as useful as we think. Each party, mediator included, will be applying their own subjective knowledge, a result of the accumulation of those ‘unique’ situations they have experienced previously, and whilst this will yield experience of a wider set of situations and potential solutions, they are also ultimately limited, because no two disputes are ever the same. In this situation, a party could easily, within or outside of their awareness, be swayed towards any advice or suggestions offered by the mediator, and ultimately lose a substantial part of their control over the outcome. This might be considered by others as a breach of impartiality.
Now, if that extensive knowledge and experience is of a legal nature, in that the mediator is a lawyer or judge, similar challenges exist but with an added dimension, in that a party would be looking for advice on the strength of their case, effectively doubting their own counsel’s advice provided to date, as well as their own assessment of their position. This can lead to communication and relational issues between the party and their own legal team, which is rarely conducive to reaching agreement during mediation, and invariably leads to increased tension, costs and time in any subsequent litigation.
Also, as anyone who has experienced litigation will tell you, no matter how many times you have been through the process, how strong you believe your case is, and that goes for counsel too, there are generally uncontrollable, unpredicted unique variables which occur in the run-up and on the day of court hearing, and all the ‘advice and experience’ can be redundant.
Let’s consider the human element of any individual involved in the process, now. Having spent years training in counselling and psychology, as well as negotiation techniques, I recognise the presence, conscious or unconscious, of bias in each of us, that influences and impacts how we view parties, and also how we react towards them. Much of my training was focused on recognising personal bias and understanding how to either suppress it or apply it beneficially within a counselling environment. In a mediation environment, if we, as mediator, are excluded from the decision-making process, and refrain from offering opinion, judgment, advice or suggestion, we do not need to exercise the significant effort of managing such personal bias, and we don’t then jeopardise impartiality.
Finally, when anyone is influential in any decision making process, however superficially, there forms a level of accountability for the outcome, be that successful or otherwise, and when the purpose of (facilitative) mediation is to guide parties through a process whereby they have a final opportunity to retain control of their outcome without interference from external parties, any accountability of the mediator in the outcome would indicate a level of interference, and so potentially a lack of impartiality, to one or more of the parties, should no agreement be reached, and consequently a claim against the mediator and the process.
Next month I will be considering whether a Mediator COULD be involved in the decision making.