The Closer

A Mediation Newsletter March 2012

A Level Playing Field
by James Rainwater

One of the main pillars of mediation is neutrality. The mediator represents neutrality throughout the settlement conference. Yet, how far does the mediator's neutrality extend? Ideally, everything remains neutral at mediation: Discussion, feedback, flow of information, etc. It is often a difficult position for most people, but it is the mediator's duty to assure that the conference is conducted with as much fairness as possible.

Though few mediators are registered therapists, it does benefit the mediation process for the mediator to take into consideration the behavior and attitudes of the participants. Mediation is a time for parties to collaborate on solutions and not grill one another as if someone is on the witness stand or in a deposition. An observant facilitator can detect such activity and moderate the interaction among parties.

Attorneys who represent individuals need to be especially cognizant of their clients' comfort levels and understanding of presented information. If the idea of the settlement conference is to make rational decisions, clients with little legal experience may require additional clarification and, perhaps obvious to many of us, time to digest all the material given to them. An experienced mediator can help ensure that a confused party will receive the necessary explanation to make an informed choice.

Attorneys who represent organizations or experienced clients will benefit equally from a truly neutral conference. When parties perceive that they are actually being treated with equity, they are more likely to give serious consideration to proposals that are offered. Imagine playing a board game with your family. If the rules are not applied equally to all players, how seriously are you going to take the game?

Barring extreme situations of eccentric pro se parties or clients with seemingly diminished capacities, the ultimate decision-making rests solely with the parties themselves. However, the mediator must constantly strive for fairness in the settlement process. The end result may not always appear to be fair, but the means by which the settlement is obtained must remain level and balanced. Parties have advocates - their attorneys. Neutrality has its advocate - the mediator.

Rainwater Law