by Chip Rose, J.D.

Experience is the most invaluable teacher.  When I sat down to do my first mediation three plus decades ago, I was clueless about the art of mediation other than thinking that anything was better than trying to settle things in the shadow of the courthouse.  I clearly remember thinking of sitting down with both clients as an exercise in “friendly law.” “Friendly” because we were going to sit down and have civil, thoughtful conversations about the issues, and “law” because divorce was a legal process.  It is a true blessing that none of those early mediation sessions were filmed.  Our artful editor, Don Saposnek, had a room with a two-way mirror and during the early 1980s was filming parenting mediations as a training tool for his students.  I think I am now rather grateful that I never followed through with my consideration of using it to record one of my mediations.

couple in mediationI knew enough to be aware that a mediator had to be “neutral” and “impartial.”  I think that I interpreted neutral as meaning that I would be vigilant in not taking sides.  I don’t know if I gave it any more thought than that.  It is daunting to think back to the beginning of our practices and consider all the complex skill sets that are necessary to engage in the most fundamental job of facilitation.  In 1980, without any internet, I was left to basically figure it out on the job, with education being the school of hard knocks that teaches so much more from the failures than from the successes—humbling though that may be.  Thirty-four years into this profession, I can honestly say that I have no idea what being “neutral” means in the context of facilitating relationship negotiation.  I have no problem with the word “impartial,” or with the concept of “impartially” facilitating the clients’ negotiation process.  I can also say without reservation or equivocation that I am “neutral” to the content of the settlement that the clients create based on the assumption that the clients are fully informed, that they have considered all options, that they have assessed all consequences, and that they capably exchanged value in the negotiation with one another.  Assuming that those objectives have been accomplished, the content of their settlement is the product of their choices and my “opinion” bears no relevance to those choices.

For our professional purposes, the term “neutral” is ambiguous at best and misleading at worst.  The ambiguity flows out of the subjective nature of the term in the context of relationship negotiation in the same way that the term “fair” is completely subjective.  The greater concern is the extent to which either party would be misled regarding the role the term plays in the process.  While we think of words such as “fair” and “neutral” as being self-evident in their definitions, we most likely are making assumptions that are not supported by the realities.  The solution is simple enough, and that is to have a conversation with the clients as to their expectations about these terms and a consensus agreement on the application of those terms for that particular process.

young couple in mediationAs background to this perspective, I should note that since I began offering mediation to clients beginning with my first case in 1980, the overwhelming number of couples that have engaged my services have been clients who are not using lawyers that participate in the process.  Although clients are not always fully disclosing of how much support they get, and from whom they get it, the services for the vast majority are limited to having some legal professional review the settlement agreement once it is reached and reduced to writing.  I have been very fortunate that the State of California has chosen not to regulate the profession in ways that have limited my ability to create and design the process structure in which I have worked these many years.  In that context, the challenge has been how to develop a process structure that responds to collective and individual client need without losing the presumption or benefit of neutrality.

One solution is to focus on the purposes served by being neutral.  The most obvious role of neutrality is the avoidance of unbalancing the clients’ process.  However, the assumption of that last sentence requires greater scrutiny.  Is it the “clients’” process or is it the “client’s” process?  The former presumes that the clients have comparable needs for the process to address, whereas the latter recognizes that each client has very individual process needs.  The presumption of mediator neutrality and the reality of individual client need create an excellent opportunity for the mediator to bring this issue to the forefront and engage the clients in a dialogue that shapes the assumptions and protocols of the process while at the same time educating the clients about their differing needs.  Generally speaking, the clients are well aware of how different each of them sees things.  It is a short step from having them acknowledge this reality to educating them about the need for each of them to get their differing process needs met if they are to achieve a maximized outcome in the resolution of their issues.   I describe it this way in an initial consultation:  “To succeed in this process with a settlement that provides the maximum benefits to each of you that your limited circumstances allow, it is necessary that each of you gets to engage in this process the way you feel you need to—so long as it does not limit or negatively impact the process needs of the other.  In other words, you are each saying: ‘I’ll do my thing in front of you, if you do your thing in front of me.’  This is an extraordinary privilege you each get from the other.  The price you pay for this privilege is to watch, listen, and engage with the other person’s process.  Do not try to manipulate or control it.”

With this frame in place, it is timely to ask each of the participants if they will give the mediator permission to assist each of them in getting through the process in the way each needs to do it.  Since the clients’ needs are so individualized, it is timely to observe that the word “neutral” does not really apply to how the mediator facilitates each of them, while the word “impartial” is still very relevant and applicable.  Other assumptions that have been previously discussed in framing the process also come into play as part of this dialogue: i.e. clients will not get their best results if either party lacks all requisite information; it is in the self-interest of each client to contribute to creating a safe environment; neither client will be able to maximize his/her outcome unless each party achieves a maximized outcome; the mediator will impartially facilitate the process for each party and will be neutral as to their negotiated outcome.  In this context, neutral speaks to the result while impartial describes the process.

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Chip Rose, J.D, has a private mediation practice in Santa Cruz, CA and provides mediation training throughout the United States. He is a Founding Board Member of the Academy of Professional Family Mediators.

This article was originally published in The Professional Family Mediator, Spring 2013.

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