One of the tools that is most difficult to employ as a mediator is to check your own biases at the door. This week, for example, I had two mediations which challenged me to do just that. The first was a retaliation in employment case brought by a young man who was the same age as my son-in-law. I tried to imagine how my son-in-law would react to the issues brought in. In that case, the young man had learned that his manager was engaged in some criminal misconduct and reported him to the police. Thereafter, he was removed from this man's supervision and later experienced other employment consequences leading to making a claim against his employer for retaliation for being a whistleblower. No matter which way I struggled, I couldn't imagine any of my son's finding themselves in that predicament. It was only after the case was settled that I realized that I was bringing myself and my own pre-conceived notions of justice and integrity into the hearing. Big mistake.
The second case was a landlord/tenant case against a lawyer and his wife who had rented a beautiful home on the beach in Southern California and then discovered a number of problems with the property, ultimately withholding several months of rent. I assumed that one would be easy for me. I knew that a lawyer has a certain earning potential and that likely this would simply be a discussion of an offset for the defects in the property. Not so. I had no concept of how a lawyer and real estate broker could actually fall so far into debt far that they could not afford to pay their own rent. That one left in an impasse over less than $10,000.
This is merely a cautionary tale about bringing personal biases into the mediation conference room. If you sense that your mediator is not sufficiently detached from the litigants or their story to do this, try taking him aside and expressing that concern. It may be enough to re-focus the mediator and get the job done.