I attended a conference for mediators this past weekend. One of the participants raised the question for the parties attending a mediation: which is more important, self-determination or the impartiality of the mediator?

The notion of self-determination is set out in Standard 1 of the Model Standards of Conduct for Mediators:

  1. A mediator shall conduct a mediation based on the principle of party self-determination. Self-determination is the act of coming to a voluntary, uncoerced decision in which each party makes free and informed choices as to process and outcome. Parties may exercise self-determination at any stage of a mediation, including mediator selection, process design, participation in or withdrawal from the process, and outcomes.

The ABA  Model Rules of Professional  Conduct defines Informed consent as “ the agreement by a person to a proposed course of conduct after the lawyer has communicated adequate information and explanation about the material risks of and reasonably available alternatives to the proposed course of conduct.” (Rule 1.01)

So, self-determination means that a party makes a decision only after they have a clear understanding of all the benefits and the risks involved. Whatever decision the party makes is of its own free will with full knowledge of the consequences of that decision.

Standard II of the Model Standards of Conduct for Mediators defines “impartiality”:

  1. A mediator shall decline a mediation if the mediator cannot conduct it in an impartial manner. Impartiality means freedom from favoritism, bias or prejudice.
  2. A mediator shall conduct a mediation in an impartial manner and avoid conduct that gives the appearance of partiality.
  3. A mediator should not act with partiality or prejudice based on any participant’s personal characteristics, background, values and beliefs, or performance at a mediation, or any other reason. …

“Impartiality” has been defined as  ”the fact of not supporting any of the sides involved in the argument…”.(Cambridge Dictionary). Thus, each party to the mediation is treated equally. The mediator plays no favorites and does not favor one side over the other.

However, is such equality of treatment contrary to the role of a mediator? If one has hired a mediator to be a bit evaluative, isn’t part of the mediator’s job to point out weaknesses in a case? To use different techniques to help each party view the matter from a different perspective, perhaps from the perspective of their adversary?   And in using such techniques, is the mediator remaining impartial?  Or is the mediator really helping each party make a fully informed decision by pointing out “weaknesses” and thus appearing somewhat partial to the other side?

In short, to ensure genuine self-determination and thus informed decision making, must the mediator act with some “partiality” if the style of mediation is evaluative?

It is an interesting question, and one to which every mediator will undoubtedly answer differently.

… Just something to think about.

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