Stay up to date on everything mediation!

Subscribe to our free newsletter,
"This Week in Mediation"

Sign Up Now

Already subscribed No subscription today
<xTITLE>Best Practices: A Participant Accuses You Of Taking Sides...</xTITLE>

Best Practices: A Participant Accuses You Of Taking Sides...

by Jennifer Thomas-Larmer
January 1999

This article originally appeared in the January 1999 issue of Consensus, a newspaper published jointly by the Consensus Building Institute and the MIT-Harvard Public Disputes Program.

In public dispute resolution processes, professional mediators and facilitators must be impartial toward all parties. Their reputations, and their ability to effectively help the disputants, depend on such impartiality.

So for a facilitator, being accused of partisanship - of favoring one party over the others or of "taking sides" - can be especially distressing. How should one respond to such an accusation?

For answers to this question, we turned to three mediators who have extensive experience managing multiparty public disputes: Ric Richardson, Dean of the School of Architecture and Planning at the University of New Mexico; Mary Margaret Golten, Partner at CDR Associates in Boulder, CO; and Jonathan Raab, President of Raab and Associates, Ltd. in Boston, MA. Here's what they had to say.

Ric Richardson

"I view the promise of nonpartisanship as central to the responsibilities of a facilitator," said Richardson. "Impartiality is a keystone in building trust, establishing ongoing relationships, and working effectively with participants in assisted negotiations. Nonpartisanship affects the parties' confidence in the process, perceptions of equality, and feelings about fairness in deciding outcomes. I hold sacred my 'contract' with a group to act in an impartial manner."

Richardson said he thus takes seriously accusations of partisanship. He recommends four guidelines for dealing with such circumstances.

"First, get the facts about the context for the accusations. What is it about my actions that leads the individual to believe I am partisan? Second, discuss the situation privately with the participant as well as other members of the group who are recommended by the person making the accusation. How widespread is this perception? Third, offer to discuss the issues openly with the group. What is the group's insight into the issue? What will be the impact of my continuing to act as the facilitator of the negotiations or of my resignation? Finally, be prepared to resign if the action or the perception of impartiality compromises your ability to work effectively."

Richardson recalled an incident several years ago when such accusations were leveled at him. He was part of a facilitation team helping a 32-member task force jointly develop a rate-moderation plan for an electric utility. Task force meetings were held in the region where the impact would be felt.

"Nine months into the twelve-month negotiation schedule," Richardson said, "a consumer representative privately accused the facilitation team of being partisan to the interests of the Public Service Commission staff. We were perceived as being aligned with the staff because we flew on the same airline to and from the meetings. The representative also argued that we had a stake in the outcome, because we were invested in 'getting a settlement.'

"I took action immediately. I talked at length with members of the consumer advocate's negotiating team. With their consent, the co-facilitator and I also talked with representatives of both the Public Services Commission and the company. Contrary to the accusation, the (other) stakeholders recognized that we were acting in a fair and impartial manner. In a caucus meeting, the participants (who were accusing us) decided that we did not have a stake in the outcome and recognized it was their job to reach an agreement." Had the group not changed its mind," Richardson said, he and his co-facilitator would have resigned.

Mary Margaret Golten

"I think we all agree that we are rarely 'neutral' about anything," said Golten, "but that it's generally possible to behave in a fair, impartial manner. It's useful if we don't love one person or organization in a stakeholder group, one view or principle, one specific outcome, and, at the same time, hate another group or their position. However, I imagine most of us have been in that situation at some point in our mediation careers and have still managed to be fair to all concerned."

So, what should a mediator do if challenged about his or her impartiality? "I'd guess the first thing is to take that challenge seriously, not to dismiss it," Golten said. "Maybe it's true. Perhaps the client has more insight into our biases than we do ourselves. In such a situation, I would think hard about my responses to the parties, my actions, and my body language. Am I looking at one more than another, sitting closer, asking more questions, giving more encouragement? Sometimes private ground rules for myself help, such as watching the number and tenor of questions I ask and the amount of time I spend with the side I may feel closer to or more comfortable with philosophically - or with the side who may be an irritation."

The next challenge, Golten said, is to avoid denials. "Even if you've looked into your soul and believe that you are feeling and acting impartially, it's crucial to listen well to the clients' concerns - to be respectful and to consider how you may be seen. We need to behave the way we'd like them to behave to each other."

"A part of avoiding defensiveness," Golten continued, "is to ask the party or parties who raised the issue to please let you know if and when your behavior seems biased toward others, or against them. (Then) ask them how it is going and how you are doing in private, from time to time. Sometimes the fact that you've listened and taken it seriously is enough to make the concern disappear."

Golten recalled a time when an environmental representative took Golten and her co-facilitator aside to say she was very uncomfortable with what they were doing. She felt they were favoring the industry side. "We quizzed her, listened, tried to understand just what she was seeing," Golten said. "We told her that we would be watchful and asked her to continue to monitor our interchanges. When we checked back in with her, which we did on several occasions, she really didn't feel that we were acting differently, but for her the problem had gone away."

There are times, Golten believes, when it is actually important to treat the parties differently because of their differing needs. "An example is a situation in which we were mediating between a tribal group and a large corporation," she said. "The industry group was very organized - they had done their homework, they had lots of support (not only clerical, but legal, engineering, etc.), and were ready to negotiate when they came to our meeting. The tribal group was stressed, having just gone through an election. They were never prepared when they arrived at the mediation session. They had not had time to talk among themselves and were unwilling to commit to anything, which was exactly what had been driving the other side crazy.

"Our approach was to allow the tribal group extra time to themselves, to meet with them more frequently, and to strategize with them longer. When we explained to the industry group that our judgment was that this extra preparatory time was necessary for the tribe, in order to prepare themselves to negotiate they felt our focus was appropriate, not a sign of bias."

"In another situation," Golten said, "a 'peace and justice' group asked how in the world we, as notorious advocates of peace, could possibly be nonpartisan in this situation in which one side were weapons producers. (But) at the end of the mediation, they told us that they finally understood our role. Our presence allowed them to be strong negotiators, which is what they wanted. Thus their original perceptions of our position changed as they went through the process."

Jonathan Raab

Jonathan Raab believes that it is important, first, to distinguish between partisanship and bias. Partisanship, he said, is the act of treating one party better or worse in a mediation process. "Facilitators must work hard to avoid partisanship," he said. "Each party must have access to the same information at the same time and in the same manner as everyone else."

"Bias goes more to the substance of negotiations," Raab said. "It may be that you have strong feelings, for example, that environmental protection is important, but that's a different issue than letting that bias spill over into favoring one party over another. (Being unbiased) is a higher hurdle that is not completely realistic and not really necessary."

He added a cautionary note: "If you have substantive experience on the issue at hand, you may have to fight you own tendencies to be partisan. Facilitators are human."

Raab described how he handled a recent case where a party believed that he was being partisan. The mediation involved 20 parties, one of which was a very powerful organization that was an "outlier" in the process - the group's views were very different from those of the rest of the participants. "There was a breakthrough at one meeting where this one party agreed to redefine an economic term so that the process could go forward," Raab said. "I immediately realized that this was a major breakthrough. It happened early in the day, and we spent the rest of the day talking about what this meant. When I wrote up the meeting minutes, I thought I (captured this discussion) exactly how it happened." but at the next meeting, the staff of this organization claimed Raab had misconstrued their remarks in the minutes. "They said, 'That's not really what we agreed to. Here's some substitute language.' But the other people thought I had gotten it right the first time. The discussions got very heated and took hours."

"At a certain point there was an implicit message that I was being partisan, although it was not an overt accusation," Raab said. "I had to say, 'This isn't productive. The reality is that the staff of this organization is not comfortable with the language. We need to step back.'" Instead of continuing to argue over what was or wasn't said at the last meeting, the group decided to discuss the issue again until everyone was comfortable about the agreements that were being made. Raab thus showed he was not beholden to one side or another and avoided any explicit claims of partisanship.

"Avoidance or inoculation is the best medicine," for avoiding such situations, Raab said. "Confront the issue up front. Tell people at the onset of a process to come to you if they think you are being partisan. Give people ample opportunity to review meeting minutes and comment on them, so the group's record is not partisan. Ask participants to preview difficult issues with you before meetings."

What if the accusations are made anyway? "You need to try not to be defensive," he said. "Try to understand why they feel the way that they do. 'Rewind the tape,' take a look at it, and explore it. Try to not personalize it. Be empathic, even. The more you can do this away from the full group, the better. Probe and prod to see if there if anything to the claims. If you erred, or it looks like you did from their perspective, you need to acknowledge that. You can check with others to see if the accusation resonates. Then negotiate to see how you can avoid this in the future...Have those people signal to you the next time they feel it's happening. You might need to give them extra air time. You might need to make an extra effort to cater to the disgruntled party, at least in the short run."

"If it's really bad, you need to discuss whether you should consider stepping down," Raab said. "That's something you need to take up with the group."

"In these large, multiparty processes," Raab said, "where it's hard to get everyone way above their BATNA (best alternative to a negotiated agreement), people need a scapegoat. People can make the accusation (of partisanship) strategically. So you can't collapse every time it comes up."