By Edmund J. Sikorski Jr.
In the world of Alternative Dispute Resolution (ADR) third party mediators are required and admonished to be neutral and impartial, but few articles specifically discuss the requirements and very few give practical working examples. This article addresses and elucidates the characteristics of neutrality and impartiality.
MCR 2.411(2) provides: “Mediation is a process in which a neutral third party facilitates communication between parties, assists in identifying issues, and helps explore solutions to promote a mutually acceptable settlement. A mediator has no authoritative decision-making power.” The rule requires neutrality but does not define the characteristics.
The Oxford Dictionary defines neutrality as: “the state of not supporting or helping either side in a conflict, disagreement, etc.; impartiality.” Standard II of the Model Standards of Conduct for Mediation (SCAO 2013) defines impartiality as: “freedom from favoritism, bias, or prejudice.”
It has long been recognized the meaning of a word influences behavior. In fact, the Bible says, “Reckless words pierce like a sword, but the tongue of the wise brings healing.” (Proverbs 12:18)
The pen is indeed mightier than the sword.
A word is a speech sound or combination of sounds, or the representation in writing that symbolizes and communicates a meaning. Conceptual words like “neutrality,” as opposed to a word that describes an object like “shovel,” are defined by example. In linguistics, definitions of word meanings are called lexical semantics. Meanings of conceptual words like “neutrality” and “impartiality” are explained by example.
Here are examples of non-neutral statements and behaviors:
(1) Mediator: “My partner/expert says that your expert opinion is questionable/faulty/all wet.”
(2) Mediator: “This is a great deal ... you must accept it.
(3) Mediator: “Your position is untenable. You will lose it at trial/summary judgment.”
(4) Mediator: “Here is what I think of the merits of your case ... .”
(5) Mediator: “My opinion is that ... .”
(6) Mediator: “I believe that ... .”
How does a mediator invite discussion of issues in the language of diplomacy, neutrality, and Impartiality? Here are a few examples:
(1) Mediator: “The other side takes the position that ... ”
(2) Mediator: “The other side says that your expert opinion is flawed because ... ”
(3) Mediator: “If you lose on that issue, this looks like what some of the results may be ... ”
(4) Mediator: “Both sides appear to be confident that they will win and achieve the results they want; but the fact of the matter is that only one side will win and the other side will lose. The odds of winning or losing are therefore 50/50.”
The bottom line is that neutrals do not express their opinions and beliefs on the merits or wisdom of a particular outcome. They invite the parties to formulate their own opinions and conclusions leading to case resolution.
It is not infrequent that a mediator is invited into a caucus trap where one party asks the mediator to weigh in on the merits or terms of case resolution. This places the neutral in a position of being an evaluator and is dangerous ethical grounds with shifting sands beneath.
Fortunately, a mediator’s toolbox has at least two “instruments” to assist the parties and avoid jeopardizing neutrality and impartiality.
(1) Engaging the parties (usually in caucus) in decision tree analysis: a road map developed by a mediation participant that converts the risk of a “good chance,” a “fighting chance,” or an “arguable position” into numerical language to arrive at probable case outcomes because:
a) Numbers capture and quantify case assessments.
b) Numbers help shift the focus promoting emotional detachment and focus on the numerical cumulative impact of litigation risk.
c) Multiplying the risk assessments developed by the participant(s) against each other obtains a probability estimate and then combines that result to yield an average discounted outcome.
(2) Instead of inviting the parties to discuss the strengths and weakness of their respective positions (assuming this discussion would take place in the presence of clients) ask each party to answer this question: “Assume the trier of fact just returned a verdict against you. Tell me why the judge (or each juror) found against your position/client.”
Mediators coax the parties to make their own case analysis and draw appropriate conclusions. This is the working definition of “neutrality” and “impartiality.”
Neutrality, impartiality, and impartial process are central to the legitimacy of decisions reached and the individual’s acceptance of those decisions.
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An approved Washtenaw County Civil Mediator and co-chair of the Washtenaw County ADR Section, Edmund J. Sikorski Jr. is a recipient of the 2016 National Law Journal ADR Champion Trailblazer Award. He can be reached at edsikorski3@gmail.com.
