As neutrals, most of us work pretty hard to keep our opinions out of the mix in helping parties reach agreements. As a matter of fact, in the Understanding Model, that is one of our agreements with parties in deciding how to work together. In this supercharged political environment with the headlines of sexual harassment, racial discrimination and a whole host of situations that show up in our offices or impact the people who come to us, we have a particular challenge in keeping quiet about our opinions when that poses a danger of allowing a more dominant party to take advantage of a party more inclined to avoid or accommodate to adapt to a situation.
Part of our agreement with the parties includes two exceptions to our not weighing in with an opinion. One of the exceptions is that we weigh in when the parties are making an illegal agreement, that is, one that would not be enforceable by a court. That’s pretty clear. The second exception is that if it seems to us that one party is taking extreme advantage of another, we want to leave room to speak up and even refuse to draw up an agreement that in our view would be unjust. This is a tricky bit of business, because there are many agreements the parties might make that we would not agree to if we were a party. That’s fine and that makes sense. But how do we determine the difference between such instances and becoming accomplices to injustice. Isn’t this rather subjective, one would ask? Yes, of course, but that does not mean that because it’s subjective, we stay silent. It does mean that we need to be quite clear that our consciences are part of the mix in determining how we operate as mediators.
So how then do we work within ourselves to be able to find the line that determines whether we speak up or not? First, we need to distinguish between our speaking up and the consequences of doing so. It may well be that our expression of an opinion leads to a conversation where we realize that we are off base, that some prejudice of ours has blinded us to the fact that the parties’ agreement does make sense for them.
Second, and this is probably the most important part of it, we need to distinguish between the dynamic between the parties and the substance of their agreement. When the agreement appears to be the result of one party speaking forcefully or aggressively and the other party withdrawing or retreating, we need to scrutinize the result much more carefully than when there seems to be real give and take between the parties. Of course, when lawyers are participating in the process, there is much less danger of this taking place.
If the problem is not the dynamic but a reaction to the substance of the agreement, we need to ask ourselves the following questions. Are we uncomfortable with this agreement only because it differs dramatically from the law or the likely outcome in court? Here we need to recognize that even without mediation, when lawyers negotiate with each other, they often recommend to their clients results that they know would leave their clients worse off than going to court. Why? Because for a number of situations, it is more important for clients to be able to put the conflict behind them than to go through a prolonged litigation process even if the likelihood is that the result would be better for them.
What this all calls upon us to do as mediators is to be straight with ourselves and the parties we are trying to help. Critical to this is the ability to self reflect and notice our own internal dynamic to distinguish between our judgmental reactions and a more dispassionate analysis of what is going on between the parties or us and the parties. Have we allowed a personal dislike of one person to impair our judgment or is there something else to this? Part of our job is to make these discriminations and not let ourselves off the hook by deciding that our neutrality must lead to our muzzling ourselves and at the same time not use our reactions as a way of imposing our ideas on the parties we are helping by acting as judges or arbitrators.
All in all, keeping this and other tensions alive is a fundamental obligation we have to ourselves, the parties, and our world. What a challenge.