THE PARTIAL MEDIATOR: BALANCING IDEOLOGY AND THE REALITY

1
THE PARTIAL MEDIATOR BALANCING IDEOLOGY AND
THE REALITY

• Dr Patricia Marshall
• Educator, facilitator and mediator
• Marshall Enterprise Learning and The University
  of Melbourne
• pjmarshall_at_bigpond.com
• pjmars_at_unimelb.edu.au

2
The Australian Practice Standards

• The Standards specify that the mediators conduct
  must display impartiality, that is, freedom from
  favouritism and bias in word or action or the
  omission of word or action, that might give the
  appearance of such favouritism or bias (2007,
  p.7).
• NB. Passing reference only to neutrality
• (p. 11)

3
Expectations of neutrality and impartiality the
challenges

• Lack of precision in interpretation of these
  terms (McCorkle, 2005 Douglas, 2008 Mulcahy,
  2001)
• Seeming impossibility of attainment, given the
  reality of heuristics and bias, even among judges
  (Guthrie et al., 2007-8).

4
My study of 43 Australian experienced mediators

• The sample
• Differing professional backgrounds
• Operating in a variety of mediating domains
• 22 males, 21 females
• Focus of the study The stressors facing
  mediators and how they cope not specifically
  about neutrality / impartiality

5
Findings regarding neutrality and impartiality

• No one claimed to be neutral in the sense of
  not having a vested interest in the outcome
• But there were concerns about the expectation of
  impartiality, specifically
• not feeling impartial about parties or their
  behaviour
• not adhering to the ideal of being able to
  state honestly I am impartial

6
The participant in the drama

• I have been anxious when an agreement has been
  drawn up and I wanted that person to be
  absolutely sure they knew what they were doing.
  That raises an ethical concern for me, and a
  justice concern for the parties. I know its
  their mediation, I know its their decision, but
  Im also a professional person who has my own
  views. I dont want to be a party to something
  unless I have tested it. Im here as a
  participant in this drama, however much I call
  myself neutral and impartial (1F-female mediator
  in focus group).

7
Lack of scrutiny

• We are not separate from the drama. We engage
  with parties while they make decisions which will
  affect their lives. And we are not subject to
  external scrutiny.
• Indeed, the two parties who are viewing your
  performance are not impartialThey are very self
  absorbed and perhaps more interested in their own
  performance (15F -female interviewee).

8
Situations challenging impartiality

• Getting people on board the need to build
  rapport, but playing to two audiences
  simultaneously (Garcia et al. 2002)
• No matter how much you reflect back to them the
  principle of impartiality, they believe youre
  aligned with them. Then everything that you do
  that counters that, youre almost insulting them,
  youre almost letting them downI work really
  hard to engage with them. They come on board.
  They are engaged. But theres a fine line between
  staying engaged and at the same time accepting
  that the other person might feel exactly the same
  way (8F-female interviewee).

9
No blame is the ideal, but the behaviour offends

• The mediators words about parties behaviour a
  jerk (14M) recalcitrant (7F), not honest,
  just going through the motions (4M), a bastard
  (9M) f.grps
• Highly personal Men who are stubborn, acting
  silly, loud and overbearing trigger something in
  me, and I have to be extra vigilant (9F
  -interviewee).

10
A recent example

• This year I was confronted in a co-mediation with
  a party who was 30 minutes late arrived without
  apologising to us or the other party raced into
  the room and took up a seat ahead of all of us
  attempted to goad the other party by referring
  once to the others mad sister and, in the
  private session, actually jumped onto the table.
• What would be your personal reaction?

11
Protecting people from themselves-confronting
self determination

• A mediator recounted a workplace situation in
  which a secretary had been accused of being late
  and lazy
• She had quite a powerful range of reasons she
  hadnt put to her supervisor. Clearly a
  scheduling could have happened, but she just
  accepted that she was tardy and lazy. I tried
  whatever the hell I could. But she said, Im
  happy to leave the organisation. I kept asking,
  Are you sure? and she kept saying, Ill sign
  whatever needs to be done. I tormented myself
  after that, and felt that I shouldnt be
  practising my skills on real people (4F- focus
  group participant).

12
Handling perceived disadvantage - the ideal of
empowerment

• When you have a belligerent person and someone
  whos more reasonable, how do you challenge
  someone without being on the side of the more
  reasonable person? I find that stressful
  (21M-int).
• We may be wrong in our assessment of who needs
  more assistance (see Garcia et al., 2002 and
  Pruitt et al., 1993).
• Self determination and empowerment are mutually
  exclusive principles.

13
Validity of perceptions

• One mediator said her reaction to an accusation
  of bias was to feel really, really shocked, so
  much so that she questioned herself, How could I
  have got it so absolutely wrong? Did I really
  stuff that up? (15F-interviewee)
• Parties perceptions are considered valid, so the
  mediator cannot rebut this accusation. Thus, her
  reflection is directed inward, and self doubt
  results.

14
Safeguarding wellbeing

• Peer support an immediate offload to someone
  who understands is non-judgmental does not
  offer advice, but allows emotions to be
  expressed.
• Formal organisational support and supervision
  (e.g. the kitchen sink)
• Mediator EQ attributes which were statistically
  significant when compared with other populations
  (general and professional)

15
The attributes-ability to

• know what one is feeling and why (emotional self
  awareness)
• function autonomously versus needing support
  (independence)
• feel at ease and comfortable, showing
  sensitivity to others (interpersonal relations)
• be aware of, understand and appreciate the
  feelings of others (empathy)
• express feelings, beliefs and thoughts, without
  being aggressive (assertiveness)

16
Downsides of these attributes

• Competence in interpersonal relations may lead to
  chumminess and expectation by a party of
  favoured treatment
• Empathy may be confused with sympathy
• Assertiveness unevenly applied may be perceived
  as unfair
• So we must move beyond ourselves to a focus on
  our clients.

17
A change of focus

• Instead of concentrating on Am I being
  impartial? we can ask
• How can I handle my inevitable partiality so
  that disputants experience procedural justice?

18
A criteria-based approach

• How do disputants define procedural justice?
• The opportunity for voice and participation
  (Pruitt et al. 1993 Thibaut Walker, 1975)
• Being genuinely listened to and understood (Lind
  Tyler, 1988 Tyler, 1987)
• Being confident that the third party is not
  biased against them?
• A sense of control (Wissler, 2002)

19
What we can say

• Rather than relying on the positivist statement,
  I am impartial, we can invite parties to
• Speak about what is important to you so that your
  concerns are heard and understood
• Hear some challenges to your views so that you
  are better informed about your options and can
  make wise choices.

20
Ensuring that concerns are heard and understood

• Appearing trustworthy
• how well the mediator gains insight into a
  disputants interests and needs (Arnold, 2000)
  interpersonal skill
• ethicality respectful treatment by
  authorities (Lind Tyler, 1988) - assertiveness

21
True empathy

• How does the party want to be perceived?
• No matter how aggressive and how nasty they
  are being to me, I never assume that it is a
  personal attack, but rather its coming out of
  their fear and pain in going through the process.
  I assume its a reaction to the process, not a
  reaction to me (6F focus group).

22
An opportunity missed

• Concentration on managing my own reactions and on
  protecting the other party meant that I missed
  taking the empathic step of judging how he wanted
  to be perceived. All of his actions (going onto
  his neighbours land to fix a problem the
  cause of the dispute, and his antics during the
  mediation) gave the clues
• He saw himself as a man of action.

23
Conveying respect

• Acknowledgement of peoples motives and their
  preferred method of acting
• I try really hard to understand that person and
  that might change my body language as well...
  Changing my demeanour causes them to change their
  demeanour (9F -interviewee).
• Clarity about the process, our roles, the status
  of the agreement

24
Posing challenges

• Reliance on political competence the
  judicious use of interpersonal skill and the
  subtle judgments about appropriate strategies
  (Marshall, 2008)
• knowing when to pursue an option or let it go
• managing power relationships appropriately
• building appropriate rapport
• engaging parties and their supporters

25
Creating a useful hypothesis

• The place of intuition
• I saw the dynamic, the conflict escalating
  between my co-mediator and the party. I could see
  what was happening and instinctively used a
  technique to try to switch the focus, to leave my
  co-mediator out of the picture. I kept saying to
  the person, Look at me, talk to me, tell me how
  angry you are (2F interviewee).

26
Sources of intuitive responses

• Experience and knowledge of people
• Self knowledge
• I have the capacity to be a heavy operator. I can
  really go in there and pinpoint a vulnerability
  and I could misuse it (1F f. grp).
• Self reflection
• Because you rely on a level of instinct or gut
  reaction, the important thing is to work it
  through afterwards, analyse and think whether
  that was the correct decision. It is sort of an
  instinct reaction but you can work on it in
  learning (12F - interviewee).

27
Principles or mantras?

• Intuition has been described as the end product
  of learning and experience (Sternberg et al.
  2000). However, mere reliance on intuition can
  misguide us and be a systematic source of error
  in human judgment (ibid). It may be more safely
  acquired through domain-relevant experience
  andimproved through instruction and practice
  (Hogarth, 2000).
• Understanding of theory, therefore, is vital.

28
Expressing hypotheses tentatively

• We might have said to action man, Would it be
  fair to say that you like to get things done, and
  so you tried to fix the problem as soon as you
  were aware of it?
• Im just wondering if (13F-int)
• Im sorry if I got that wrong (20M int)
• A tentative approach conveys respect.

29
Ensuring parties save face

• Determining when people are ready to participate
  can they put their best foot forward? (15F
  int)
• Being conscious of our use of strategies so no
  one looks bad (22M-int)
• Being appropriately self revelatory. One mediator
  described how she sometimes reveals to parties,
  I know what its like not to be believed its
  devastating (6F f.g.)

30
What we can promise

• That we have no vested interest in seeing one
  party have a more favourable outcome than the
  other(s) (Essential, yet different from promising
  no vested interest in the outcome)
• That parties will have the opportunity to speak
  about what concerns them, and the right to be
  heard with dignity and respect.
• They will not be told what they should do.

31
What we must warn

• Part of the deal in mediation is that they are
  required to listen to perspectives with which
  they may not agree, and their views may be
  challenged by the mediator(s). These challenges
  are not designed to get at the truth but to
  ensure that they clarify their options.

32
Conclusion

• Awareness of our biases is essential if we are to
  achieve our role, but rather than focusing on our
  possession of bias, and offering mantras about
  our supposed impartiality, we can focus on what
  the parties find most helpful as they cope with
  the pain of conflict voice, respect and control.