Underlying Philosophies of Mediation 3 – Impartiality

One of the more commonly recognised  Philosophies of Mediation is that of impartiality, however it is not always clear in literature what the term actually means and how it manifests within the process and experience of having mediation.

Impartiality within mediation arises from the conduct of the mediator, it is an actively manifested feature of how a mediator communicates and acts, even to the extent of how they organise the process and how they ensure the context in which it is used supports a perception or ‘feeling’ of  impartiality for participants as far as the mediator is able to influence.

Impartiality in mediation is of often mistakenly portrayed as arising from the ‘status’ of the person ‘mediating’, as if it passively resides within someone and so all aspects of their conduct are considered to be impartial by default.

This erroneous approach can lead to people providing mediation who are not mindful of how they conduct themselves and communicate in order to ensure their impartiality is manifested through their conduct but consider themselves and the procedures used to be impartial on the basis of their ‘status’.

So there are examples of someone who is, for example a senior manager or other senior figure in an organisation being appointed to ‘mediate’ in disputes. In the workplace it can be a senior manager or senior HR officer, in universities it can be a Dean or Vice Principal or other senior role, in schools it can be a Head Teacher, in neighbour disputes it can be the Housing Officer etc.  In international disputes it can be a ‘statesman’ from a different country. There are many issues contrary to the aims of mediation that arise from this:

1. The idea that someone who is ‘senior’ will by default be ‘impartial’ and conduct themselves in such a way that the mediation process is impartial is clearly not a valid assumption.

2. The status of the person as ‘senior’ makes it far more likely that the process will default to being adversarial as the participants can feel they need to gain the favour of the person because of their seniority and ability to influence an outcome should they take action in the situation following the mediation. Additionally the sense of confidentiality is less guaranteed when the ‘mediator’ is someone known to the participants and senior to them. In mediation, the mediator has no influence or vested interest in the outcome and so is more able to maintain a perception of impartiality for participants, even before their conduct reinforces this. If a mediator is aware of a prior relationship with a participant or other conflict of interest  perhaps with possible outcomes of the dispute itself, they are duty bound to withdraw from the process.

3. The appointment on the basis of seniority ignores the requirement for the person appointed to have an understanding of the mediation process and associated skills and often indicates an expectation more in line with arbitration than mediation – that the ‘mediator’ will give a view about the situation of dispute and even try to persuade participants into taking a particular course. It can be suggested that, as a senior figure they are used to ‘chairing meetings’ but this is not the same as mediating and a further indication of the erroneous understanding of the mediation process by both the ‘mediator’ if he/she accepts the role, and of those who appoint them on that basis.  While such a role and experience may be suitable for an adversarial process such as a grievance or complaints procedure it is inappropriate and contradictory in a non-adversarial process such as mediation.

So how does a mediator conduct themselves in order to maintain impartiality?

When a mediator’s identification with the problem being mediated is more aligned with one participant’s view than the other’s they are at risk of losing their impartiality unless they have learned the means of communicating that fulfil the role of mediation but which does not introduce their own opinions into the discussion. This is where the mindful communication of a mediator is important. The mediator recognises their wish to try to influence a situation and manage that impulse through the way he/she communicates.

This is not done in a way that tries to manipulate or lead the participants in order to funnel them into the mediator’s agenda for the outcome, it is done in a way that ensures the  communication opens up the possibilities for discussion between the participants and which supports the creative thinking of the participants towards their own resolution, while at the same time taking out any involvement of the mediator’s self-recognised agenda.

So, for example, a common response in difficult situations that indicates someone’s own agenda for a ‘solution’ would be as follows:

When presented with a complaint or concern by one person about another, a common response is to say Have you tried talking to them about it? A mediator would not use this question for the following reasons:

1. It is the listener’s idea that to talk to someone about the difficulty is the way to move forward in the situation when it may not align with the complainant’s preferred way. We can’t know their preferred way of communicating and so to suggest one possible option, via a leading question is to see the situation from our perspective and to try to funnel the person into our  way of responding. Whether the answer to the question is yes or no the outcome is to return the expectation for an answer to the listener. Ownership for creating the answer is not assumed to be with the complainant but with the listener. Consider for yourself how the conversation would go if you are the listener and you make the suggestion/leading question Have you tried talking to them about it?. If the answer is ‘No’ or if the answer is ‘Yes, but it didn’t work because they were rude/didn’t listen/didn’t care….’ etc. what do you then say? Both replies return the discussion to  you as the proposer of the answer. Mediation is a process that supports empowerment and  self-determination, responses and resolutions are created by the person(s) who are involved in the difficulty,  and so the above means of responding to a complainant would not fit with that.

2. It is trying to ‘fix’ the situation rather than support the person in creating their own answer to their difficulty. This may or may not be something a person who is not a mediator wishes to do and so it remains a common response when people bring a complaint or other difficulty to another person. However it reinforces the perspective that the listener holds the answer to the situation rather than the initial speaker who brought the issue. If this happens often enough the listener can start to become overwhelmed by the expectation that they always ‘hold all the answers’  and frustrated at the lack of willingness of the complainant to deal with problems themselves. This is a common experience of managers in a workplace with employees who have difficulties with each other, and parents with children who fall out often. They reactively try to ‘fix’ the problems brought to them rather than support those with a problem in finding their own solution. Our Managing Conflict in Teams training explores this challenge in order to help managers develop ways of supporting empowerment of employees to resolve their own difficulties in workplace relationship situations.

So how would a mediator respond in a way that fulfils their role and supports the creation of resolution of the situation by the person involved, and remains impartial through not expressing a view or making a suggestion?

If the complainant discusses a problem and indicates things they would like the person complained about to do or to know and understand about their situation, a mediator would use an open question such as What communication has there been about this situation?. This is an exploration of what or whether there has been communication about the issues complained about. It leads to a description by the complainant  of what has happened or not happened rather than a ‘yes’ or ‘no’ response and the resulting description allows for further exploration. So for example:

Mediator: What communication has there been about this situation?

Complainant : Well, I tried sending them an email saying this isn’t working and I can’t make sense of it but I got a woolly response that didn’t really say anything useful.

Mediator: Ok, so what were you wanting as a response?

Complainant: I was wanting some clear guidelines about how to do…(X)

Mediator: So what could you do to get those clear guidelines rather than the response you got? What would indicate ‘clear guidelines’ to you?

Complainant: I guess I want some step by step guidance on this and to understand why I’m doing each step so I can feel confident about what I’m doing.

Mediator: Ok, so previously you’d sent an email saying the process isn’t working and you can’t make sense of it and the response you got, you said was ‘woolly’ and wasn’t useful. So if that wasn’t useful, how could you communicate or find out from [them] what you are wanting – step by step guidance so that you can feel confident about what you are doing?

Complainant: I guess I could pretty much ask for that! Explain I don’t feel sure about what I’m doing and why, and so could they take me through it step by step?

Mediator: So how would you communicate that to them?

This discussion could continue much further, possibly exploring what they could do if they still don’t get what they want, other possible ways of finding out etc. If they say the problem happens often, the mediator could help them explore how else / from who else they can find what they want etc. The point is that, at all times, the mediator explored what the person wanted but gave no advice or suggestions, but acknowledged and  followed the responses of the complainant with further exploration. Open questions were used throughout to ensure it was the complainant that created the answers and was not defaulting to the mediator to come up with ‘solutions’.

The above is a snapshot of the kind of conversation that will occur in a mediation but hopefully indicates the way in which the mediator supports the person involved. You will note that this is a conversation between just one person and a mediator and for us at CAOS this is not inappropriate as we may have a similar discussion with a participant in a mediation process when we meet with them prior to any joint meeting as our approach is one of supporting resolution at all stages in the process. In a joint meeting between two participants our questions would be similar in that, at all times, they are not, advisory /leading questions but open, exploratory questions that clearly leave ownership of the answer with the participants. In this way we are supporting reflection and creativity in participants while also remaining impartial.

Go to Mediation Questioning Skills for more information about this use of questioning within the mediation process.

Fairness – a legacy of the legal process which often doesn’t fit with the philosophies of mediation 

This example of how mediators get very mixed up when thinking they have the role of deciding or assessing ‘fairness’ and include it within their criteria for an outcome is a legacy from the legal branch of mediation history. It is another indication of the difficulties that can arise through the intertwining of mediation within a legal process instead of treating it as an entirely separate and fundamentally different approach to helping with a dispute or relationship/communication breakdown. The academic paper linked to above is fairly long so if you don’t have time to read it all, here is an extract from the summary at the start:

This article provides extensive research and analysis regarding Standards that focus on mediator impartiality and fairness. The research establishes that Standards create chaos for the practicing mediator to the extent they include vague and internally inconsistent provisions. 

Unfortunately the author seems to go on to argue more for the need for clarity of what fairness means and how it can be included in a mediator’s role to decide on this, than to see that wanting to combine mediator impartiality with the idea that they also give a view about ‘fairness’ in a process that is meant to support self-determination by participants, is a self-contradiction. It assumes ‘fairness’ is definable. There may be an idea of it defined within law on certain issues but the view of legal ‘fairness’ is often not shared by those on whom the decision is imposed. Yet the author suggests a process which directly involves participants in creating their own outcomes will be less able to achieve fairness than more able. And this is, of course, assuming that ‘fairness’ is one of the criteria by which participants assess their outcome. In a legal framework this may be the criterion used but it may not be so in a mediation context by the people whose view matters – the participants.

It is another example of where the intertwining of mediation within the legal system and its assumptions and processes leads to ‘mediation’ within it  defaulting to an adversarial process and so the whole premise of mediation is undermined.

Impartiality - philosophies of mediation‘Fairness’ – can only be subjective and is only given ‘objectivity’ or, perhaps, ‘conventionality’, when defined by laws or other legislation within a context, hence it has no particular place within mediation other than when participants themselves decide that an outcome is fair or not, if that is the criteria by which they assess their outcome. If a mediator becomes involved in assessing and stating what they believe to be fair the process becomes an adversarial one in the same way that has been described in previous posts on the philosophies of mediation:  When the mediator states a view, participants are drawn in to seeking to elicit future views from the mediator to be in their favour , and the situation becomes one of ‘two against one’ rather than ‘one with one plus a third party with neither’.

This is not a ‘tricky’ or complex challenge, it simply  requires that mediators are aware of, and use, particular practises in the way they conduct themselves and communicate in order to remain impartial:

  • Acknowledgement not opinions: A view by a participant can be acknowledged, but not agreed with or contradicted, however it can be explored to help them understand their own thoughts around their view and to decide if that view and the actions they take based upon that view works for them within the given difficult situation for which they are having mediation.
  • Open questions not suggestions: The mediator doesn’t make suggestions or give advice as illustrated in the example dialogue above. To give advice or make suggestions comes from a place of the mediator seeing their own ideas and perspectives as important and ‘useful’ and with an intention of fixing the situation rather than supporting participants in creating their own resolution. Giving advice or suggestions risks polarising the situation as a mediator’s suggestion can be in line with the wishes of one party and against that of the other party and so the mediator can become engaged in a tussle to ‘persuade’ one party of their view, rather than facilitate a discussion between those involved to help them put forward their own ideas from their place of greater knowledge and understanding of their situation.

Both of these aspects of conduct in the communication used when mediating are challenging when we will, as mediators, have a view about a difficulty because we tend, as human beings, to ‘identify’ with a situation and see it from our own perspective. If our identification is particularly strong we can have a tendency to try to persuade others to take the actions we would take in that situation rather than trust them to know what is best for them, in acknowledgement that it is their situation and not ours. They ‘own’ it, we don’t, nor will we have to live with the consequences of any decisions or new perspectives created in a mediation with regard to the difficulty.

As the mediator, if we are not mindful of this and we seek to persuade people to take a particular action to fit with our ‘fix’ of it, we only have to deal with the consequences within the meeting itself. This is where a mediator’s own agenda of ‘agreement’ being the required outcome of a mediation can mean they again lose their impartiality, as they are allowing what they think or have been trained to believe is a sign of ‘success’ in a mediation to override what the participants may want as an outcome. It may seem to be a nice outcome for the mediation meeting but it may not be the best outcome for the situation.

The importance of ensuring a sense of impartiality for participants within the process of mediation is reflected in the mediator’s conduct and in the context in which the process is offered. A mediator needs to state clearly the ‘structure’ within which they offer the process and the reasons for it being so. In that way, disputants can make a free decision regarding whether they participate or not and can challenge any practises or situations that they feel are not aligned with the philosophy of impartiality and other philosophies of mediation espoused by the mediator.

Self-awareness in the mediator regarding their thoughts and feelings in response to what they hear from disputants helps them to monitor  and carry out their communication and actions in order to maintain the impartiality of the process. This development of self-awareness and the consequences for the process if not developed is an essential part of the training of mediators, otherwise their actions are ‘mindless’ and not based in a clear ethos and discipline of practise.

It is an enormous challenge for some to hear about a situation and not feel they should ‘fix’ it for one or other participant, or for both, but this is the challenge of  practising mediation and awareness of our ‘rescuer’ and the damage it can cause if let loose in others’ difficult situations is a sobering reminder of why our commitment to impartiality is important.

‘The world is ruled by letting things take their course. It cannot be ruled by interfering’ Lao Tzu – Tao Te Ching 

 

Read about all of the 6 Underlying Philosophies of Mediation:

1. Ownership

2. Empowerment

3. Impartiality

4. No-blame approach

5. Confidentiality 

6. An ‘Adult-Adult’ relationship with clients not a ‘Parent-Child’ relationship 

 

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