Many people ask me how I can be a neutral mediator when I have firmly formed opinions on the laws, proper workplace behavior, and many other topics that are at issue when I mediate. I have several answers to this question.
First, don’t assume that someone’s experience and background determine how that person will view the facts of any particular lawsuit. I’ve found that my experiences often lead me to want to favor the employee in workplace mediations. I was a manager for many years, and an attorney representing management for even more years. But because I have opinions about how managers ought to manage, I am quick to judge them when they fail to live up to my expectations. I need to control my urge to impose my standards on other people (as we all do in so many situations in life).
Second, what is most important for mediators is not whether they express their opinions, but that they are aware of their biases. Only when they have this self-awareness can they decide what to do about their prejudices. Most of the time mediators can put their biases aside, sometimes they can disclose their opinions, and let the parties decide whether to proceed, and occasionally mediators – if they do not think they can manage the process openly and fairly – should step away from the case.
Finally, as a mediator I know it isn’t my decision whether or how a case should be resolved. I am not the judge or jury. My job is to help the parties come to a resolution that they both agree is better for them than a trial.
I believe strongly in the value of mediation, so I can generally put my opinions aside. When I think it will help the process, I will give my opinions to the parties (known as being an “evaluative” mediator), but if I can’t put my opinions aside when needed, I shouldn’t be mediating the case.
But in most situations, it isn’t necessary to give my opinion. I can manage the process toward what the parties think is an equitable result, even if it isn’t the best result from my perspective. If the parties are satisfied, then I must be satisfied also.
Have you had experiences with someone who was supposed to be neutral who didn’t seem to be?