Thursday, June 12, 2008

Don't Get Mad - Stay Neutral !

I’ve had a few recent conversations that cause me concern on the issue of mediator neutrality. In a workers’ compensation mediation, it seemed that negotiations were moving right along, an agreement was reached and then, while drafting the agreement, the defendant wanted a credit for payments made under a long term disability plan while previously they said no credit was to be taken. This “change” made the claimant’s counsel mad and, apparently, the mediator got mad about it too and shared anger with the employer and its counsel. In fact, the mediator got so mad that the mediation ended abruptly at impasse.

So, why am I concerned? While we mediators certainly do everything in our ability to help participants reach an agreement, sometimes things change when we least expect it and in a manner that creates strong feelings. I believe that for us as mediators, there is no room to get mad at one side or the other. Even when they do things that make the participants mad ! We are supposed to stay “neutral” and to not show bias. If we as mediators react with anger, we are no longer neutral, we are showing bias and we can no longer be effective as a mediator.

These thoughts are also supported by an NC DRC Advisory Opinion from last year (8/10/07 ) which admonished a mediator for moving away from neutrality by confronting counsel at mediation. In that situation, the mediator felt that counsel was not being truthful and a confrontation ensued. The opinion states: “A mediator should not compromise his/her neutrality by overtly accusing a party of being untruthful during mediation or by using language tantamount to such an accusation. A mediator should not confront a party in a hostile or abusive manner. Such actions compromise the mediator’s neutrality. A mediator should not use profane language during mediation even if the parties or their lawyers are using such language.” Here’s the full opinion.

My point is that even if you are mad on the inside, you can’t show it – you have to roll up your sleeves and figure out how to help get the agreement put back together. Thus, mediators, don't get mad - get to work!

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