A Mediator's Dilemma

First of all, thanks to the Harvard Law School for making this space available. The idea of a blog on this topic hosted in this space is exciting!

A difficult mediation often causes a mediator to continue pulling tools out of the toolbox until it’s empty. This blog is designed to collect wisdom on the dilemma’s faced by mediators as they strive to maintain neutrality in working with difficult mediation sessions.

The Challenge of Neutrality

The ability to maintain an aura of impartiality is a mediator’s stock in trade. Without it, the mediation session devolves into a nothing more than a directive discussion. Sometimes that’s what most of the people in the room desire, but normally, they want a neutral person to assist them reach a workable peace.

The “mediator’s dilemma,” therefore, is the challenging mediation, the mediation that leads to a week’s vacation. It occurs when the mediator, no matter how skilled, reaches the bottom of her mediation toolbox, and begins to think about divine intervention.

It doesn’t take long to stumble upon this type of mediation, whether in role-play or real life. It is the mediation where:

1. The mediator has failed to properly center himself before attempting to work with the parties
2. Something happens within the mediation to pull the mediator off center
3. The mediation environment creates bias

Ordinary Examples:

1) The mediator was unable to sleep the night before a mediation.
2) The manager of an employee uses an ethnic slur that involves both the mediator and the opposing party.
3) The mediator knows the proclivities of the judge assigned to the case strongly favors one party.

In the case of the prisoner’s dilemma, the person with the best information (the interrogator) intentionally hides the information from the prisoner to create sufficient pressure to obtain a confession. In the mediator’s dilemma, the mediator often has to withhold information from both parties (“I’m tired,” “I’m offended” or “I know you’re going to lose at trial”), to maintain their perceived neutrality.

I’ll make my own shameless plugs later, but for now, I simply invite you to participate in this blog, post your on-topic comments, trackbacks and other networking tools to make this truly a place for open discussion of mediator neutrality.

If you’d like to post your own articles (re-posts are fine!), please let me know!