Thursday, July 28, 2016

Neutrality and Transparency

Neutrality and transparency are two critically important concepts in mediation. What do they mean in the mediation context?

Maybe it is easier to start with what they do not mean.   Being neutral is not like neutral on your automobile gear shift. It does not mean lack of motion, lack of movement or inertia. Neutral does not mean blasé or like a neutral color that blends and neutral is not vanilla.  In mediation however, neutrality is key.  Neutrality in mediation means that the mediator is not siding with one or the other party. Neutrality means that the mediator does not have a stake in the outcome except to insure that the process is fair, that the clients are fully informed, that they understand what they are agreeing to and ultimately believe their agreement is fair and reasonable.  

I often distinguish for my clients the difference between the term neutral and unbiased.  As much as I would like to be, I do not believe that as a mediator I am unbiased. I don’t believe any mediator can ever be completely unbiased. We all have our biases, worldviews, prejudices and leanings. A good mediator however will recognize those biases and not let them influence the direction of the mediation and the self-determination of the clients.  Neutrality means not letting your internal biases guide or even affect the mediation.  Neutrality means that both parties feel that you are on their side or that neither feels you are on their side or the other party’s side.  Neutrality does not mean you will sit there like a lump on a log and not take action (i.e. be in neutral on the gear shift). To the contrary, neutrality involves hard work. It involves constantly gauging, assessing, measuring and figuring out what you need to do while remaining in the neutral zone. It is helpful to think of it like a light gauge on a camera.  For a good photograph, you want the needle to generally be in the middle of the gauge- not too dark and not too light.  To do that you are always making adjustments to the aperture, the speed, the film speed etc.

Transparency is the second concept which is critical to a successful mediation.  For me, as a mediator, it is important that both parties hear and see the same information. It is critical that neither party fears that I have information from the other party that they do not know about.  Finally it is critical that all information necessary for resolving the dispute is on the table and subject to inspection or questioning by both parties (or all parties if a multi-party dispute). There should be no secrets, no secret deals, no secret emails, phone calls or conversations.  I like the word transparent because unlike the word “neutral,”  it is what it sounds like. If you look through a transparent piece of glass, you see exactly what is on the other side.  That’s how it should be.  The mediation should not be opaque or even obscured.  In order to make an informed decision, the clients need to clearly see everything in  front of them.

Finally, the concepts of transparency and neutrality are inextricably linked in the following simple way. In order for the mediator to be neutral and to be perceived as neutral, there must be complete transparency.  How is transparency achieved?  When I conduct mediations I have the following simple rules:

1.         I will not talk individually to either party unless at some point there is a decision by both parties that they want me to do so.  (This is called caucusing and is a subject for another day).
2.         I will not accept individual emails from clients. (Again unless there has been a specific agreement to do so although even then I am reluctant to do this).
3.         I will not have individual conversations with either client (other than non-substantive calls like to schedule a meeting) again unless we have previously decided to do so.
4.         Any information I receive from either client must be shared with the other party (again unless we are caucusing, in which case there is a mutual understanding that each party may ask me to keep certain information confidential).
5.         Even before the initial consult, I am very careful to tell the person contacting me that I do not want to receive substantive information from him or her until both parties are in the room.  Even if it may not necessarily affect me or the process, it may result in the appearance of lack of neutrality or lack of transparency down the road.

One of the keys to a successful mediation is to provide clients with an environment and space where they feel safe.  This does not just refer to physically safe but also to creating a sense for the clients that they can feel safe talking about sensitive issues, and feel that the mediator is professional and taking care of the their needs. Part of creating that safe mediation environment is creating mechanisms and a process which insures the mediator’s neutrality and transparency.