Mediators are described as independent, impartial and neutral. What does this mean? Essentially it means that the mediator has no financial or other interest or benefit in the outcome of the dispute. The mediator is independent of the parties but this does not make him or her a judge or adjudicator. All too often the first misapprehension which has to be explained is that the mediator makes the decision or ruling in the dispute. They will not. The challenge is for the mediator to maintain this neutral space during the course of the mediation as the parties explore options and make progress. This is achieved by the mediator constantly adjusting the balance of the dispute during the day without becoming partial. It takes practice. Parties don’t want to be pushed in a direction they don’t want to go. The mediator has to use what the authors of ‘Friendly Persuasion in Civil Case Mediations’ by James A. Wall Jr and Suzanne Chan-Serafin (CRQ Vol 31 No.3, Spring 2014) call ‘strategic flexibility‘. In the mediation world, there is a debate about the value of different mediation styles; some say facilitative, others prefer evaluative but what difference does it make to those considering mediation for perhaps the first and only time? Any explanation here would be an oversimplification (the difference between the parties working out the resolution with the mediator’s help (facilitative) or being told the answer (evaluative)) and risks ignoring the combined effect of assertive questioning, dampening unrealistic expectations and using different approaches to suit the circumstances. There’s more to it than that of course and the parties can always ask the mediator beforehand. When parties are in private session the mediator continues to actively listen to what one side is saying while challenging any assumptions and posing practical scenarios for consideration – all from a neutral position. The mediator does not act for either side in the dispute. Each party can reflect on their options in response to the mediator’s questions and begin to see the dispute somewhat differently. That’s what a neutral mediator does without seeking a specific outcome, assisting the parties towards their agreement. Reaching the point at where the parties can bridge their differences is the result of the mediator’s flexibility to stay neutral while taking an active and at times assertive part in the mediation.
This blog is written by mediators from Garden Court Mediation. It aims to be an informative guide to mediation and provide updates, comment and analysis on interesting developments in mediation.
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