Humans. For better or for worse, that’s what we are. We have opinions, we make decisions, we make judgments, and we make choices.
As neutrals, we are charged with having a fair and balanced approach to our cases. We are trained to follow guidelines, processes and procedures to ensure equality in our efforts to provide a cost effective, impartial, and fair service to our clients in dispute.
Diplomats typically engage in mediation as one of their most important activities. Some people also believe that mediation skills are part of being a politician. Conflict resolution and mediation skills are particularly important given that the role of politician or diplomat require the achievement of agreements between separate entities of which the diplomat or the politician are third parties by definition.
These activities are usually performed in order to get, on the subjective point of view of this mediator, a recompense that might be in the form of a direct economical advantage, a political advantage, an increased international prestige or influence.
The study and/or practice of law lends itself to conservative thoughts and processes. The recent ruling on Healthcare reform by the Supreme Court was in itself an event politicized down party lines until the deciding vote. What was the burning question after the ruling? How could a conservative Justice, appointed by a conservative President cast a deciding vote against his conservative peers?
How do we as neutrals put aside our ideologies, our philosophical and political opinions in our efforts? When conducting an intake do we form an opinion based solely upon the attitudes of the parties involved, the facts, or do we allow our political affiliations to seep into our process? In addition, is there a foolproof way to prevent this from happening?
While I believe no method is foolproof, especially in the legal field, there are steps we can take as mediators to maintain our credibility. In this economy it can be easy to hear a dispute to keep the revenue coming in. However, I believe it’s imperative to know the facts, not the opinions of the dispute. Opinions are what we think we know but actually don’t. On the other hand, facts, while not 100%, lend themselves to be more accurate than opinions.
If we have a dispute that tests our ability to be impartial because of our political convictions, what are our options? Do we recuse ourselves or do we proceed and throw caution to the wind?
On one end of the spectrum, settlement is the goal to be achieved. At this far end, retired judges act as evaluators and convince litigants to agree to a settlement that has been developed by the mediator. At that far end of the spectrum, the parties usually meet in separate rooms and never talk with each other.
On the other end of the spectrum, repairing the relationship is the primary goal and the issue is seen as an underlying break in the relationship. Transform the relationship and the issue won’t be so important. Emotions are brought to the table and expressed face to face.
Between those poles, there are many different models of mediation and applications for the models. Lets use this classic example to further this topic:
Facilitative, interest-based mediation is widely used in community, family, and commercial mediation. The classic story which illustrates interest-based mediation is this one. Billy and Bobby are arguing in the kitchen when Mom comes in. I have to have this orange, each exclaims to Mom. There is only one orange and Mom offers to cut it in half. They each scream in protest. I must have the whole orange says Billy. No, I must have the whole orange, says Bobby. Mom is perplexed. Billy, why do you need the orange, she asks. Because I must have the peel of one whole orange to make Grandma’s birthday cake. And why do you need the whole orange, Bobby? she asks. Because I must have the juice of one whole orange to cure my cold.
When each interest was known, the answer was simple. One orange was enough that both of them could meet their needs. The interest-based mediation is resolved.
However, in this scenario, what is the political affiliation of the Mother? Is it a liberal sharing of the orange or was the Mother being conservative?
When we hear or see the news, how much of our opinions and decisions are influenced by our political affiliations? When we are at the grocery store, the mall, the theater, a place of worship, or a restaurant, how much is our viewpoint or reaction influenced by our political affiliation when we encounter a particular event, person, place, or thing?
This is a topic that is key to the infrastructure of the credibility of mediation. As the practice continues to grow and become mainstream, will the public be comfortable with it. Will regulations eventually point to this topic? Will referrals from attorneys hinge on this?
As we are a politically polarized nation, this will be a major topic, front and center, sooner rather than later.
by Travis Bell