By Abby Tolchinsky and Ellie Wertheim
May 1, 2007
Mediators in New York State are guided, but not bound, by a small number of Model Standards and ethics opinions.1 By the same token, there is strikingly little analysis of the mediator’s role as a neutral facilitator, which is the essence of what it means to be a mediator.
This article explores the diametric shift, for attorneys and for clients, from traditional advocacy to voluntary conflict resolution.
No Win-Lose Paradigm
In mediation, parties and practitioners step outside of the win-lose paradigm, focusing instead on the parties’ own ability to craft, together, the best result for each of them – a solution taking into account each of their practical concerns, understanding of the conflict and sense of fairness and the law.
Neutrality itself is somewhat easier to define by what it is not: It is not lack of caring; it is not lack of opinion; it is not slice-it-down-the-middle justice; and, perhaps surprisingly, it is not objectivity.
The Mediator Standards of Practice, promulgated by the New York State Dispute Resolution Association Ethics and Standards Committee, defines mediator impartiality as “freedom from favoritism or bias, either by word or by action or the appearance of such.” Further, “impartiality includes a commitment to serve all participants rather than a single party.”2
Thus, mediation demands that practitioners look at all sides of a conflict. Serving the parties while maintaining this neutral stance is a constant, informing the mediator’s behavior and presenting a variety of challenges at every stage of the process. Working on the assumption that neither party holds the “right” answer, but rather that both are seeking to solve a mutual problem, the mediator’s role is to withhold judgment and to facilitate the negotiations. The mediator achieves this by listening to and empathizing with each party, being for each party. In this process, parties are freed from the burden of trying to prove their point or sway an impartial decision-maker.
The result is that each has an opportunity to be both heard and understood. Once differing viewpoints are expressed, the parties can begin to explore ranges of settlement options. The parties benefit immensely, not only from having expressed their own priorities, but also from hearing what truly matters to their counterpart.
In mediation, the first step of the process, is “contracting,” a conversation in which the parties and the mediator have an opportunity to meet and explore their reasons for choosing to mediate. Also, the mediator is observing whether they are each capable of participating fully in the process: advocating for themselves, obtaining and evaluating relevant documentation, and, ultimately, making binding decisions.
In business disputes, where both parties are represented by counsel in the mediation, these concerns are somewhat less pressing. However, when individuals have a conflict and when there is a significant disparity in information and power – one party has business and financial savvy while the other is less informed, for example – the mediator explores with the parties how to redress the imbalance. In order for mediation to work, each party must be able to assert his needs and point of view – to disagree – but also must be able to make concrete decisions, even if they seem to benefit the other party – to agree.
Another aspect of contracting entails setting up ground rules regarding how the mediation will go forward. These may include: who pays; how often to meet; how to communicate and behave, both during the sessions and between sessions, (e.g., no ex parte communication with the mediator); what steps each party will take in order to facilitate a negotiated settlement, such
While discussing relatively noncontentious issues throughout the contracting phase, the mediator models neutral behavior, and the parties first experience a dynamic of neutrality, laying the groundwork for the more challenging conversations ahead. This establishes a trust in the relationship between the parties and the mediator, paving the way for how the parties will conduct themselves later on when negotiations may become fraught with anger and hard bargaining.
The first aspect of contracting that moves the parties toward a more substantive negotiation is defining the scope of the conflict as well as the issues to be resolved in mediation. In other words: the parties come to mutual agreement with respect to their goals for mediation.
Once the initial contracting phase has been conducted,3 the parties begin to explore the issues one by one, in an order they mutually agreed to. There are two models for how mediators move forward at this phase of the process. One model prefers to work with all the parties in one another’s presence at all times, on the theory that when the parties negotiate directly they understand the other side’s motivations and experience of the conflict more fully. Particularly in hotly contested negotiations, the mediator illuminates each point of view, re-stating and reframing each side’s perspective.
An example of this technique at work: a mother states that she wants full custody of the children, and a mediator may say, “So for you it feels very important to have a lot of quality time with your children.” The father may shift from feeling that she had been trying to take his kids away to an understanding that for both of them parenting is one of the central priorities of the divorce negotiations. Hearing a position reframed in a neutral, yet positive way, rather than as positional bargaining, provides the opportunity for deeper understanding and a broader range of settlement options. In the above parenting example, understanding that each party wants a close relationship with the children may facilitate more flexibility in designing schedules and cooperation in the parenting responsibilities.
To break down this process a bit further: in exploring the issues one by one, the mediator will probe each party’s position in an effort to illuminate the interests and concerns predicating that point of view. The mediator does this in a nonjudgmental manner; helping the parties to articulate and think through priorities. Once both parties have fully explored their interests and concerns, together they generate possible settlement options. The neutral mediator may also suggest settlement options, but not until the parties have exhausted their own ideas. The mediator’s role then, as the neutral, is to help the parties assess the options against the needs and interests that have been elicited.
At this stage, each party may become wedded to an option that does not take into account the needs and interests of the other. The mediator will then ask each of them to explain not only why they are choosing that position, but also may ask how that position serves the other party, thus challenging each to consider mutually acceptable solutions.
Challenges to Neutrality
A mediator may face several challenges to neutrality, including: parties clinging to legally untenable positions; parties resisting becoming legally informed; reacting strongly to a party’s personality; disliking the deal the parties are choosing. The mediator must also suppress the instinct to serve as an expert who provides clients with the “right” answer. As advocates, and as former litigators, the natural impulse is to do just that. Instead of having an outcome in mind, the mediator’s work is to explore options with the parties, freeing them up to be their own experts, thereby arriving at their own decisions and results.
This essential component of neutrality is accomplished by the mediator working to ensure the integrity of the process. That means the parties have negotiated on a level playing field, one in which each has had the benefit of reviewing and understanding all relevant documentation and consulting with counsel. Additionally, a mediator will analyze how their settlement will affect the parties going forward, providing a “reality check.”
This is particularly important when the mediator is concerned that one party is agreeing to a deal that may be detrimental to him or her in the future. When all of these safeguards are in place, a mediator can comfortably remain neutral as to the outcome, respecting the autonomy of the parties to choose their own results.
By contrast, after the scope of the conflict is defined, the caucusing model employs a methodology that looks somewhat like shuttle diplomacy. The mediator meets with each side separately, obtaining and conveying information on each side’s behalf. Similar to the noncaucusing method, the mediator will explore the interests and concerns behind each position. While the mediator in this process is less concerned about informed decision-making (each side has counsel present) and has the benefit of a more open exchange out of the presence of the other side, there are additional challenges: maintaining the trust of each side, deflecting the tendency of each side to try to sway the mediator as they would a fact-finder, and assuming a truly neutral posture when only hearing one side’s point of view at a time.
To address the challenges presented in a caucusing model, a mediator may ask one side to articulate the strengths of the other party’s case as well as to state what is needed to reach a settlement. The mediator may also have to remind the parties that he is not standing in judgment of either side and that the provisions of a settlement agreement – or, indeed, the decision not to reach a settlement – is exclusively in the hands of the parties.
In this process, too, a mediator may, with the consent of both sides, submit a nonbinding mediator’s proposal for settlement, but will generally do so only for parties who are near settlement but cannot quite bridge their differences. Even in that scenario, a mediator does not simply split the difference; his proposal is based upon the needs and interests the parties have expressed throughout the mediation.
Abby Tolchinsky and Ellie Wertheim are partners at Family Mediation.
1. Inter alia: New York State Dispute Resolution Association, Inc. “Mediator Standards of Practice” (2005-2006); American Arbitration Association (Adopted Sept. 8, 2005), American Bar Association (Adopted Aug. 9, 2005), Association for Conflict Resolution (Adopted Sept. 22, 2005), “Model Standards of Conduct for Mediators”; New York State Bar Association’s Committee on Alternative Dispute Resolution, “The Uniform Mediation Act and Mediation in New York” (Nov. 1, 2002); New York State Bar Association Committee on Professional Ethics Opinion 736 (Jan. 3, 2001).
2. New York State Dispute Resolution Association, Inc. “Mediator Standards of Practice” at 9.
3. A benchmark of mediation is that the mediator and the parties are continuously re-evaluating their goals for the process, how the process is working for each of them and whether it needs to be re-adjusted to accommodate mutual goals