Mediator Neutrality: How is it possible?

How could a mediator be neutral about your situation when you are getting divorced? Surely one of you is right and the other is wrong! If you know in your bones– and all of your friends agree– that you are right, you may think that mediation would not make sense for you, because you don’t want to compromise.

First of all– let me reassure you that you won’t agree to anything in mediation that you don’t want to agree to! But something happens in mediation that changes people’s goals and outlook. I don’t ask my clients to agree with each other– just to make an honest effort to understand each other. And to accomplish that, it turns out that mediator neutrality is one of the most valuable and powerful tools I have.

If I really understand how you are feeling, what this experience has done to you, what this means for you, the challenges that you are facing as you try to restructure your life– then I can help your spouse understand these things. And I can also make sure that the agreement that we put together takes care of you and your needs.

The theory underlying our adversarial legal system, is that each person will hire a bright, skilled warrior who will see the situation completely from the perspective of the client, and then present the strongest case possible to the judge. The judge will get the best information from each side, but will be neutral. The judge will see the situation from above and will render a decision which metes out justice and wisdom.

Sadly, because of our over-loaded and burdened court system, most judges do not have the time to get to know the people behind the case-load. People who go through the court system often end up feeling that they did not have their story heard by the judge, and that they were not given a chance to speak.

Mediation will give you that chance– and you are the best person to speak about your life and your needs. No expert knows your life as well as you and your spouse do. In truth, no hired expert will care as much as you do– because only you and your family will live with the agreement you make. You are the people who are in the best position to decide what should happen with your family, your possessions, and with your divorce.

As a mediator, I will not act as a judge, in that I will not make decisions FOR you– but I will act as a judge in that I will remain neutral. I will do my best to listen to everything that each of you needs to say, and I will ask questions to make sure that we have all of the information we need. If one person needs additional information, I will help to brainstorm to figure out how to get the information to that person. He or she might need the assistance of an accountant, a financial planner, or an attorney, before feeling confident enough to evaluate offers that are on the table or have enough background information to make decisions.

I will use all of the tools I have to make sure that each person HEARS the other. There is always miscommunication between divorcing people, but a neutral mediator can help to improve the communication to make sure that you understand where the other is coming from, and why you believe the proposed result is right. You don’t have to agree with each other– but it helps to understand why you disagree.

That is the theory. How does it work in practice? How is it possible to be on both people’s sides, when they are in a conflict?

Anice and Marshall came to me for divorce mediation. Anice expressed her thoughts clearly. She loved Marshall passionately and still believed that he was the love of her life. She had made a commitment to him which, to her, meant that she would stay with him no matter what. She told me that Marshall had had other affairs in the past, and had always returned to his commitment to her. “How do I know that this time you are serious?” she asked him. “What makes you think that, 3 months from now, you won’t change your mind again and come back to me?”.

The couple had recently purchased a house. Anice said, “Why did you buy this house with me if you wanted to get out of the relationship?” The couple had greatly disparate incomes, and although Anice had been the motivating force behind their buying their home, she was not at the present time able to figure out how to pay the expenses of the house by herself.

I could have felt that Anice was “right,” and Marshall– a lousy toad. She was the one with commitment and vision, she felt sure that this marriage was the right thing and was able to stick with her husband through thick and thin. She planned and worked to enable them to buy a home. And after this loyalty, what was her reward? Constant betrayal, multiple affairs!

Then Marshall told me about his experience. He spoke eloquently about his need to move on from a relationship which felt stagnant to him, and from which he could no longer derive any sense of intimacy or romance. He was very grateful to Anice for all the love and support he had gotten from her, and the achievements he accomplished because of her support. But for a long time he had felt that there was something missing. This feeling drove him to seek outside relationships, even though he had derived from Anice love such as he had never before experienced in his life.

At the present time, he felt stifled by the relationship. He felt responsible for Anise. He was aware that she wasn’t able to earn as much money as he could earn, and he felt trapped. Although he felt platonic love and respect for Anice, he had a new girlfriend. For Marshall, the 12-year relationship had evolved into a friendship.

After hearing Marshall, I felt his pain. I felt how Anice’s willingness to stay in a relationship with a man who was sleeping with another woman made Marshall feel trapped. He saw her as a crazy woman who had no self respect, who would live with him even though he rejected her.

In truth, I felt great empathy for both Anice and Marshall. Through my understanding of them, I was able to sympathize with Anice, who felt deeply committed to this man, and hurt every time he told her that he still loved her– and who felt that she would have stayed with him no matter what happened, even if he had outside relationships.

I felt empathy for Marshall, who expressed that this marriage, though it had endured for 12 years, had never completely fulfilled him. He felt an excitement at the change to break free and try again in a new relationship for something that felt more healthy and fulfilling and less co-dependent and suffocating than his relationship with Anise.

My job, now was to do my best to increase their understanding of each other. Marshall had a better understanding of how Anice felt than she had of his point of view. Once understanding is improved, they would be ready to negotiate the fairest way for them to divide their house and their possessions.

Anise had to confront the reality that Marshall wanted a divorce. When I helped her to accept this, she was able to negotiate alimony for a period of time, so that she could keep the house and eventually become self-sufficient. Marshall saw the alimony as a way to buy his freedom, and it was a great relief to him to be able to do that. They were both satisfied with the terms and their divorce agreement was completed.

Children perceive their parents neutrally during a divorce. As much as you might want your child to side with you against the other parent– it won’t happen– and it shouldn’t happen. A child will never thank you for taking away his mother or father. The children each contain a little bit of each parent, and they are able intuitively to understand both parents’ points-of-view. The children understand the limitations and strengths of both their parents and love them.

I can think of many cases where I had deep empathy with both people, and could see both their sides. I had a case where the marriage was breaking up because the woman was a lesbian. I empathized with the husband, Allen, who, in his early 50’s had to leave his beautiful house. He had to rethink his whole life with Marge, in light of these changes in her outlook. He had believed he ‘d had an OK marriage. He didn’t want a new life, but the old one had been snatched from him.

Marge was able to communicate to me the excitement and liberation she felt as she embarked on her new life. She showed me that something had always felt “wrong,” in her life, and now, for the first time she didn’t have that feeling.

Marge came to mediation believing that she had embarked on a course of self-discovery. But during our sessions, she came to a new understanding of how this journey had affected Allen. She ended up giving him a more generous financial settlement, partly to assuage her guilt, and partly to help Allen to also feel that he was getting an opportunity to embark on a new life– that might hold some promise, excitement, even happiness not present in their old one.

The truth is that it is never simple to determine why a marriage ends. Something was probably always lacking in Allen and Marge’s marriage. Why didn’t Allen see that? Why didn’t Marge know earlier? The end of the marriage is created by both, as the beginning was created by both.

My challenge is always to understand both people. In another case the husband, Brad, went out to get a newspaper one Sunday morning and did not come back or call for 3 days. He left Helen with 2 young children, without even a note. I could imagine her anguish, and the fear of the children. But during our sessions, I could see that Helen never let Brad speak!! I’m not saying that what he did was right, only that I understand that he did the best he could and that something drove him to do this terrible thing. Something that he felt had been equally awful had been done to him or he would not have done this to her.

And that is probably the crux. I do believe that most of us are trying the best we can to make our way through this life. We try not to hurt the people we love, or have loved. And we do our best. But we are imperfect creatures, so we do not always succeed. We are hurt and we lash out– and the other may not know that he/she has hurt us. Through my understanding, I can often help people to forgive themselves and each other– which will help them to move forward into their new lives post-divorce.

Divorce raises all kinds of hurdles, as you restructure and begin to figure out your new life– and also raises all kinds of complex emotions. When you are navigating the maze of these changes, the last thing you might want to hear is that your spouse’s position has some validity. (And that is one of the appeals of the adversarial system. When you are hurt, angry and shaken up, who would not want to hire an experienced warrior, who will tell you that you are right and that your evil spouse should make amends– usually monetary– to avenge these wrongs?).

These feelings are especially intense where the impetus for the break-up of the marriage is a situation with deep emotional effect– for example, where one person has a new lover, or where one person walked out on the other very suddenly and without warning. The “right” spouse might find that the new identity as a wronged person becomes intensely compelling and attractive.

The answer is that neutrality will bring you closer to the truth, and the truth will help you to move on with your life.

Defining Mediation

Recently, talking to a very experienced mediator, we started to describe a particular practice of an attorney-mediator during one of his cases. At the end, we asked: was that mediation? Our friend told us that no, it wasn’t mediation. We asked why and a long silence fell over our table. Then he confessed that it can not tell exactly why, but somehow he felt uncomfortable with the practices we described and certainly he would not attempt to use them during his own cases. But he also agreed that, in extremis, those kinds of practices can be considered as being part of the mediation process and there were a lot of mediators using them.

Now, let’s assume we were just two regular citizens, totally unaware of the whole body of literature on mediation written in the last 50 years, and we were just trying to make up our mind about using mediation in the near future. What would have been the message we had received? We would probably be shocked to learn that there was no common understanding of what mediation was and that there was no consistent body of practices enveloped by the term mediation. Do you think we would be persuaded to put our money in the game and give it a try?

We think not. When you pay for a service, you expect at least a minimum of consistency of its concepts and procedures. You do not want just a service, you want a service of quality. If there is no clear distinction between what mediation is and what is not, how can you be sure you were offered the quality stuff, not just something? Or that you have really received what you were paying for, at all? And, at least, you would expect that, if you randomly call different mediators, you ‘d receive the same definition of their trade.

This heterogeneous understanding of what mediation is constitutes one of the major causes of the failure to generate trust with people and thus limiting its use. Mediation will not create significant impact until this transitory stage will be globally overcome and a clear, consistent definition and description of its fundamentals will be sorted out by mediators themselves.

In 2011, in a provocative and very instructive article, Michael Leathes aimed to open a discussion about the proper definition of mediation. The reason was the lack of a universal, simple-to-use and easy-to-understand way of conveying to the public what mediation is. The problem was not that there was no definition of mediation, but rather the multiplicity of definitions, some of them vague, some long and opaque, others too limitative in their description of the process. Most of them do not tell what mediation is, but rather attempt to describe the process. Even worse, in Mr Leathes’ words, “many service providers tend to see the world more through their own private lenses than from the vantage point of their customers. They wind up describing what they do, rather than properly defining mediation itself. Consequently, many institutions and mediators that have attempted to define mediation have achieved the unfortunate result of unwittingly limiting what mediation is, or could be, by virtue of the narrow comfort zone within which they operate.”.

Nothing is truer. Unfortunately, two years after, the problem still stands. There is still no general agreement for a universal definition of mediation. Or, the issue of defining something is usually (and logically) the first step towards making that “something” achieve an autonomous existence. As mediators, we don’t stop complaining that the public is unaware of our trade, that lawyers tend to confiscate the process and turn it in something they understand and like and, thus, deviating from the true meaning and purpose of mediation, or that mediation is not regarded as a serious profession, but rather an after-hours activity, meant to solve petty disputes of people lacking the resources to use the regular venues of proper justice. Of course, it is always easier to blame others (lawyers, judges, legislators, and citizens) for our failures, but, this time, the failure is of our own making. Our inability to clearly stipulate, in very few words, what exactly mediation is and what we are doing is the very first reason why there is so much confusion about mediation and why it so easy for others to deviate and manipulate the process to meet their own ends.

While in total agreement with Mr Leathes’ analysis of the problem, we failed to understand how his initial proposed definition will solve it. Defining mediation as “consensus facilitated by a trusted neutral person” didn’t bring the much-sought clarification of the issue. Does identifying mediation with consensus imply that, if there was no consensus/agreement at the end of the mediation process, the process isn’t mediation? We assume that mediation is about jointly exploring interests, needs, relationship, options, choices, all with the general purpose of giving the parties as much accurate information they need in order to make educated, comprehensive decisions concerning their issues. Yes, it would be great if, at the end, the parties made a consensual decision about how to manage their dispute, but this doesn’t mean that, if there is no consensus at the end, the process can’t qualify as mediation. Mr Leathes’ initial definition confused the means with the ends. Mediation is rather the process through which consensus is sought and achieved (if possible), not the consensus itself.

In December 2012, the article was updated to reflect stakeholder comments. We agree with the updated proposed definition of mediation as „ negotiation facilitated by a trusted neutral person”. This definition correctly identifies mediation with the facilitation process of a negotiation by a trusted neutral person and not with the consensus that the process is aiming for.

Before submitting our version, let’s try to better understand what a definition is and what it stands for. First, let’s agree that a definition is a statement explaining the meaning of a term. Second, let’s bring to attention the fact that there are, grosso-modo, two major types of definitions: intentional and extensional. An intentional definition contains the necessary and sufficient conditions for a thing being a part of a certain category or set. An extensional definition is a list of all things part of a specific category or set. It is obvious that what we are looking for falls into the first category. There are several rules to be followed when attempting to set up an intentional definition: it should clearly identify the specific attributes of the thing defined, it should not be circular, it should not be obscure, it should be rather positive than negative (a thing is rather than a thing is not) and it must strike a balance between being too wide or too narrow. Having these in mind, let’s see what we can offer.

Building upon Mr Leathes’ proposal, we should say that mediation is a negotiation process facilitated by a trusted neutral person having no power of decision. Mediation is, in fact, facilitated negotiation– a special kind of negotiation, but nonetheless negotiation. This clearly suggests the necessary self-determination of the parties and also the voluntary character of the process. It means that we can easily dis-qualify as being mediation processes where the parties are forced to attend and take part against their own will, where the parties can not decide over the issues at stake or where a decision is imposed on the parties (this includes the situations when parties are presented just one viable option, thus leaving them without a real choice).

The word “facilitated” conveys the special character of mediation as a negotiation process. The parties do not attempt to solve their problem on their own, but rather with the help of a third party. This makes mediation part of a specific set of or category of dispute resolution methods– those based on the third-party intervention. It puts mediation in the same set with arbitration or litigation. But our definition makes mediation distinctive within the set by stipulating that the third party has no power of decision, in total contrast with an arbiter or a judge. The very fact that the mediator has to facilitate consensus-building by not having the power to impose her/his own decisions upon the parties makes mediation special and unique within the set.

Also, the definition underlines another distinctive feature of mediation as a method of solving disputes based on the intervention of a third party, which is the fact that not everyone can act as that third party and be called mediator. In order to qualify as mediator, the third party has to be a trusted neutral, meaning a person that is trusted by the parties and has no stake in their dispute (a fact that excludes extra-judicial transactions done by lawyers from being labelled mediation). So, negotiations between employees facilitated by their managers, transactions between parties facilitated by their lawyers, communication between spouses facilitated by their parents do not fall into within the range of the mediation concept.

Finally, this definition gets rid of terms that are self-defeating in marketing mediation: “attempt” and “try”. We’ve seen literally dozens of definitions of mediation where the mediator or the parties “attempt” or “try” to find a mutually acceptable solution to a dispute. Nobody’s going to trust someone just “trying”– we pay others to deliver, not to “try to deliver”. Will you pay a barber who’s telling you that he “is going to try to cut your hair”, thus conveying to you his own doubts that a certain result can be achieved? As mediators, we do not “try” or “attempt”– we deliver. Our trade is to facilitate negotiations, and this is what we deliver and this is why parties pay us for. It is the parties’ job to find a solution to their dispute; our job is to facilitate that process.

Building a not too-wide-not-too-narrow definition of mediation that tells what mediation is (as opposed to how it works or what mediators and parties do during mediation meetings) and what makes it distinctive within the specific set it belongs to is an essential step towards making mediation a mainstream method of dispute resolution. It helps it acquire a stature and a status of its own. It helps mediators offer a better understanding of their trade to potential users. It helps mediators understand their trade and promote it. And it stops others shoveling smoke with regard to mediation.

The mediation is a negotiation process facilitated by a trusted neutral person having no power of decision.

Why Mediation?

Mediation works. It is an effective means of dispute resolution for any dispute not requiring a judicial or third party determination. It provides a forum and an atmosphere in which parties gain understanding, become understood, and work together to explore options for resolution. By resolving disputes in mediation, parties determine for themselves what is important and, ultimately the outcome of the situation. While the benefits of mediation vary somewhat depending upon the nature of the dispute, and model of mediation applied, the following are some of the benefits typically associated with mediation:

RECOGNITION: In hearing and being heard in the mediation forum, parties gain the understanding of the other parties point of view, and an enhanced opportunity to be heard and understood themselves.

EMPOWERMENT: Parties are empowered to decide for themselves whether and how they would like to resolve a situation. This self-determination aspect of mediation often corresponds to higher aspirations of how individuals and businesses want to conduct their lives and do business generally.

SPEED: In resolving or narrowing disputes through mediation, parties avoid the delay of a third party or judicially decided outcome.

ECONOMICAL: In resolving or narrowing areas of disputes through mediation parties save an enormous amount of time, energy, and expense associated with protracted conflict and litigation.

CONFIDENTIALITY: While lawsuits are matters of public record, what transpires at a mediation can be kept confidential by agreement. Whether a mediation occurs before or after filing of a lawsuit, any form of communication generated at a mediation is normally inadmissible evidence. In California, communications generated at a mediation are inadmissible and to be kept confidential under Evidence Code section 1119.

QUALITY OF SETTLEMENT: Studies indicate parties entering into voluntary agreements through mediation are far more likely to adhere to and fulfill commitments made in such agreements than they are with judicially imposed resolutions.

REALITY CHECK OPPORTUNITY: In a private caucus, mediation can afford the opportunity to communicate important “reality check” information that may be easier for a client to accept from a neutral.

AVOID BAD OUTCOMES: Through mediation, parties avoid both the “win-lose” and “lose-lose”, outcomes associated with litigation. Many parties who “win” in protracted litigation often find the overall time, energy, and monetary commitment associated with litigation comes at an enormous cost and loss. Those who lose in litigation surely feel even worse about such an outcome. Mediation can spare parties from all of this and enable them to move forward from disputes efficiently and effectively.

The foregoing are just some of the compelling reasons to mediate disputes. Moreover, there is seldom any serious downside to mediation. While some may hesitate “to put their cards on the table” in mediation, in this era of discovery driven litigation, the old “trial by ambush” days of civil litigation are increasingly becoming a thing of the past. Mediation works not only because it focuses on the parties= own interests and agendas, but also because it provides the opportunity for parties to move beyond disputes efficiently and chart their own future.