Is it possible for a mediator to show too much empathy? At a program SCMA put on last night which included a mock employment mediation, reaction in the room was divided in response to the demonstrator's expressions of understanding of the employee's grievances. Although a few in the audience felt that the mediator could have gone even further in commiserating with the employee's feelings that the employer had not adequately accommodated her need for religious observances in the workplace, a fair number of others thought it was wrong for the mediator to display any sort of solidarity with the employee's complaints.

Those who objected to the mediator's expressions of empathy thought this approach could threaten the mediator's neutrality. They also seemed to think that what parties in mediation need is not so much understanding of their complaints and feelings, but more reality testing. In this case, the non-empathizers thought this employee needed to hear a strong message that she was unlikely to prevail in her lawsuit alleging discrimination based on her religion. Presumably that sort of warning would dissuade her from pursuing a lawsuit, and induce her to accept what the employer might be willing to offer. What was telling, however, was the role-playing employee's reaction to these differing approaches. It was the more empathetic responses that made her feel more positively about the process, and that seemed more likely to cause her to react favorably to the possibility of a negotiated resolution of the dispute.

The split in the audience for our program revealed a real dichotomy of views going to the very essence of what mediation is, and what role the mediator is supposed to play in it. The mediators who disapproved of empathizing with the parties believe in appearing judgmental and stern. Parties unable to resolve their conflict come to such a figure to be told what to do, presumably because they lack sufficient knowledge of how the law would resolve their dispute. In mediation parlance, this is called an evaluative approach, and it suits former judges and many experienced attorneys who assume that what parties need from mediation is an opinion on the merits of their positions by a neutral who is knowledgeable and experienced in the ways of trials and juries. A mediated solution is almost imposed on the parties in that scenario. They may not always like it, but they may accept it as a good approximation of what they would receive from court.

An empathetic mediator, on the other hand, appears kind and forgiving, and seeks to inspire hope and trust from the participants. Such mediators, who range, again in mediator parlance, from facilitative to transformative, believe that the solutions to parties' conflicts lie within the parties themselves, and that greater understanding and sympathy from the mediator will lead them to greater understanding of each other's interests, and to a resolution that feels right to them. Such a mediator is not going to tell the parties what to do, but may instill enough trust in the parties that they will willingly modify their demands, and help find solutions to their conflict.

Which approach is right? The field may not be well-developed enough to answer that question. Certainly those in our group who feel that excessive empathy violates the mediator's neutrality consider their evaluative style more appropriate. On the other side, those who find it hard to believe that the mediator can be too empathetic believe that their more facilitative approach is the only true form of mediation, and some even consider it antithetical to the proper conduct of mediation to offer legal opinions or suggest solutions for the parties.

Personally, I would pay attention to the parties' feelings and expectations and reactions to the process. People do tend to open up to expressions of empathy. And they don't usually respond well, at least initially, to having their feelings and positions challenged. But parties also sometimes need to face some unpleasant truths. How soon should mediators lower the boom on them? My sense is that most participants in conflict are suffering enough when they walk into a mediation that they don't need that to happen right away.

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By Joe Markowitz


Joe Markowitz has practiced commercial litigation for more than 30 years, both in New York City and Los Angeles, and has served as a mediator for more than fifteen years. He is a member of the Mediation Panels in both the District Court and Bankruptcy Court in the Central District of California. He is currently the president-elect of the Southern California Mediation Association. Website: