Steven I. Platt, BridgeTower Media Newswires
Kenneth Cloke is a mediator and coach in the field of conflict resolution, a profession that he and Joan Goldsmith created and are in the process of developing. In his book “Politics, Dialogue and the Evolution of Democracy,” Cloke -- whom I have met and learned from -- points out two very different schools of thought about neutrality and the fundamental question of who is qualified to mediate political issues and public disputes.
One view is best articulated by Professor Lawrence Susskind, founder of the Consensus Building Institute at the Massachusetts Institute of Technology and a professor in the Program on Negotiation at Harvard Law School. Susskind emphasizes that neutrality is central to the value practitioners add as ADR professionals and says neutrality is what “allows us to earn the trust of all sides in a dispute.”
In a nutshell, Professor Susskind’s view is this: If you have taken a position and if it is known, there is no way anyone who disagrees with it will accept you as a mediator they can trust.
That view is contrasted with the opinion of Professor Bernie Mayer of Creighton University, who has written extensively on conflict resolution. Professor Mayer’s position is that it is not necessary for a “Neutral” to totally surrender or repress all of his/her political ideas or moral and ethical beliefs to mediate or facilitate dialogues involving people with opposing ideas and views, as long as the Neutral displays sufficient humility to project his or her sincere belief that he or she is not too sure of being 100 percent right, i.e., that the Neutral displays the “spirit of liberty,” as Judge Learned Hand described it.
That means the Neutral must find constructive, diplomatic, practical and effective methods to confront unacceptable behavior and language, such as bullying, blackmail and intimidation, while still being willing to recognize that people who behave and speak in these unacceptable ways can and do have legitimate concerns that should be addressed. In other words, it is not and should not be required that a mediator completely surrender his/her personal views to effectively mediate or facilitate a dialogue between persons with views different from his or her own. The bottom line, in the words of anthropologist Laura Nader: It is not necessary to “trade justice for harmony.”
That said, before any ADR professional undertakes to mediate or arbitrate a dispute of any kind, but particularly one with a political component, the professional’s neutrality, if questioned, should be discussed fully and thereafter be unconditionally accepted by all parties and counsel -- or the case should not be accepted by the mediator.
I have personally engaged in these types of discussions with both parties and counsel when requested as a part of the Neutral selection process in various types of cases, including commercial and professional liability claims and disputes, some with a political component. Without exception, those discussions have been substantive and conducted without rancor and in good faith. They have also resulted in a better-quality neutral selection process than would have occurred if they had not taken place, and at the end of the day they increased the likelihood of resolving the underlying dispute. This result confirms one of my favorite axioms, which is that all of us, like most situations, are “more complicated than either our admirers or detractors would like to admit.”
That being said, the ability to deal with complicated situations involving complex personalities becomes even more important as the world turns and moves forward.
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Steven I. Platt, a retired associate judge on the Prince George’s County Circuit Court, can be reached at info@apursuitofjustice.com.
