Efforts here in Massachusetts to enact the Uniform Mediation Act have run aground. Deadlocked over one vexing question - how to define a mediator - the MassUMA Working Group (as those of us involved most directly in those efforts call ourselves) is poised to take some time off to regroup and rethink.
An active member of MassUMA since its founding in September 2006, I’ll provide a post mortem here some time down the road. But probing and weighing the UMA has produced questions beyond the one that has confounded MassUMA participants. Although I support the UMA (the original version drafted by the National Conference of Commissioners on Uniform Laws and not the one my MassUMA colleagues proposed), one of these questions in particular has been nagging me. Here it is.
Section 9(g) of the Uniform Mediation Act states that “A mediator must be impartial, unless…the parties agree otherwise”. What on earth does this mean? How can anyone actually be impartial - particularly with so much evidence from cognitive psychology and the social sciences to indicate that it is not humanly possible to be free from bias?
Recognizing this problem, the Commissioners on Uniform Laws placed brackets around Section 9(g) “to signal that it is suggested as a model provision and need not be part of a Uniform Act.” Some of us in the MassUMA Working Group would have been happy to comply and dispense with this provision, since its violation bars the mediator from asserting a privilege for a mediation communication. Others, however, argued that impartiality is essential to mediation, among its defining qualities, and therefore wanted the provision to remain.
But the question stands: how can anyone ever be impartial? How can we reasonably, rationally expect it of anyone - and make the ability to claim a privilege conditional upon it?
And then I read the message mediation giant Lee Jay Berman posted to an ADR listserv, which barrister and mediator Geoff Sharp helpfully published on his blog. Berman muses about impartiality and concludes that it is no Holy Grail but only fallacy. He describes instead a wholly different quality he seeks to embody at the mediation table:
When I think of neutral, I think of a car revving as loud as it wants to, but with no ability to move forward.
When I think of impartial, I think of driving the car down the middle of the road and keeping it from going too far to either side.
But how I see my role is what I call Mutually Partial. I see myself as a coach for each participant, helping them get as much of what they came for as I can. I am partial, when caucusing with the plaintiff, in helping them strategize to maximize their take-away, and to make sure they’re getting EVERYTHING they came there to get (non-economic, emotional, closure, big picture of their life, etc.). I am partial when working with plaintiff’s counsel to get what s/he wants (money, reputation, referrals, etc.). I am partial when caucusing with the defendant as I help them to strategize how they play their given hand of cards, evaluate their risks, consider their overall big picture and making sure they have what they need in their file to support the settlement they’re authorizing. I am partial when working with defense counsel to ensure that they strategize and counsel their client well, that they look good, and get a settlement that they can recommend at the end of the day. I help people find their reasons for doing what they need to do to settle. I serve as a negotiation coach more than a message carrier. I lend my expertise and creativity as I offer them options and choices. I clarify for them all what’s going on in their negotiation from my neutral view. Basically, I help everyone come out of it OK.
So, I am not neutral. I never claim to be. If I were neutral, I could not offer them as much value as I do. I just offer it mutually.
Exactly. Well said. So, what do you think, mediators, are you ready to shift out of neutral? It’s what being in the driver’s seat is all about.