Looking at myself for bias: (Part 2 of ‘But you can’t always be Impartial, can you?’)

I have been writing recently about impartiality in mediation:  1) about how a mediator needs to work with both (or all) of the parties without taking anyone’s side; 2) discussing the question of whether working with clients during mediation means treating them in exactly the same way, and 3) pointing out that some people can’t be impartial because they  aren’t able to ‘sit back’ and allow the parties to create and agree on their own solutions, but rather must give (even advocate for) their own opinions.

In my last post, I ended by raising the matter of what happens – or, more accurately, what a mediator needs to do – when s/he feels some type of bias for or against a (potential) client.  Now, I’ll address this question.

As a mediator, I have to be aware of my own feelings and responses from the very first phone call or interaction with potential clients.  Usually, I don’t have any concern about my being able to work with parties in an impartial manner.  But sometimes – and it may happen right away on the phone, or during a consultation – I do get a sense that my ability to be impartial in this particular case may be an issue.

What to do as a mediator:

Question Myself:

  • What is it that I’m feeling?  Where does this feeling come from?  Does this party remind me of someone (friend, relative, . . .)?  Am I ‘transferring’ feelings about the person I have known onto the party?
  • On the occasions where these questions about my impartiality come up, it is usually enough for me to recognize that I have the feeling – whatever it might be – and to identify where it is coming from.  The feeling fades, and while I keep in mind that it is there, somewhere, I am able to work with the parties without it interfering in any way.
  • But, there are those very unusual times when I cannot be impartial (or when I still question whether I can be).  In such a situation, I have to acknowledge to myself that I am, or at least may be, biased.  I then have to decline the case; which I am happy to do, if I am not able to properly assist the parties.

To be continued . . . .



But you can’t always be Impartial, can you? (Part 1)

My two previous posts have been on Impartiality in Mediation: 1) about how a mediator needs to work with both (or all) of the parties without taking anyone’s side; and, 2) discussing the question of whether working with clients during mediation means treating them in exactly the same way.

Today’s blog is on the perhaps touchy matter of what do, if as a mediator, you do like, or somehow feel aligned with one party more than the other.  Or that a (potential) client ‘pushes your buttons’. Mediators, of course, are people; hopefully well trained and experienced, but still human.  We come to the table, so to speak, with our own upbringings, experiences and opinions.

Not everyone can or should be a mediator, and not only because of how someone may feel about the parties.

  • When people ask me about taking a mediation training – mostly people who have never taken such a training before – the discussion often involves the questions, “What would be the next step after the initial training?  Would I definitely be able to do that (participate in an apprenticeship* program, for instance)?  How can I know if I’d make a good mediator?”
  • I’m not able to offer guarantees when it comes to these matters; but I may share an example of people who do have a problem becoming mediators.  There are lawyers (again, I am an attorney, and this is not a knock on lawyers), especially some litigators, who cannot keep from taking a side when working with others.  Lawyers (and others) with this mindset, may not be able to help themselves from advocating one party’s position during mediation sessions.  The person may even try to provide the solutions and terms of an agreement, ones that the parties themselves might feel are unfair.

Obviously, such behavior isn’t impartial.  After observing newer (and occasionally more experienced) mediators, I have raised the question several times:  “Did you feel closer to one party than the other?”  We then explore the issue of bias.

But, my pointing out here that certain people have a more ‘impartial temperament’ than others, if I can call it that, does not answer the question about what happens if and when a mediator does like or is ‘rubbed the wrong way’ by a client.  Because, not being perfect, a mediator may still have such feelings, even without showing them.

To be continued . . . .

*Note:  An apprenticeship involves a newer mediator handling actual cases under the supervision of an experienced mediator.

If you do that, . . . , is that being Impartial?

In my last post, I wrote about being impartial as a mediator, assisting both (or all) of the parties, and not taking one’s side against another’s.  But for some readers, the following questions may still remain:

Does working with clients during mediation mean treating them in exactly the same way?  In a divorce case, does everything have to be ‘equal’?

Yes.  And, No.

‘Yes’ examples:

  • I treat all of the parties respectfully.
  • I listen to all of the parties carefully, make sure that I understand them, and invite them to correct me if/when I misunderstand something.
  • In divorce cases, I encourage both spouses to have their agreements reviewed by a matrimonial attorney before signing them (more on this in another post).

‘No’ examples:

  • In a session, “Wife” talks more than “Husband”.  Does my listening to Wife for more of the time (in terms of minutes) than I listen to Husband make me biased in Wife’s favor?
    • No, not if I am listening to both carefully.  Not if I take breaks in the conversation to check in with the less talkative spouse, providing opportunities for him or her to speak, respond, and so forth.  Not if the ‘smaller talker’ says to me, “I’m good.  I’ve said what I want to.  You can go on.”
  • “Wife” knows more about the finances of the marriage than “Husband”. Am I acting in a biased manner by having them gather and share information about their expenses, assets and debts?  After all, my efforts are probably helping Husband learn more than Wife, because Wife already knows a lot about these things.
    • Again, the answer is ‘no’.  As a mediator, I work to ensure that both (all) participants have the information they need to make informed decisions.  I do this regardless of who the parties are, and who knows more or less coming into the first session.

Yeah, it’s Voluntary; What else is Mediation? Impartial

In my previous post, I began to discuss what the process of mediation is, and explained that it is voluntary.  Mediation is also:

  • Impartial (some use the word neutral)
    • As a mediator, I work with both (or all) of the parties.  I work to understand each person, and to help them consider and speak about what s/he wants and needs for the future.  In the context of divorce, this often means talking about a place to live and how to pay for this and other expenses; and, if there are children, about spending time with them, and making decisions in regard to raising and caring for them.
    • I do not represent either (or any) of the parties; representing one party against another is something a lawyer often does.  Again, as a mediator, I work with all of the parties, helping them to gather and share information, to develop and consider options for going forward, and ultimately in reaching their agreements.
    • My role is to help the parties to communicate constructively, to guide them in considering and addressing all of the issues that they need to, to ensure as I am able to that their proposed agreements are workable (reality testing), etc. Without taking anyone’s side.

To be continued . . . .


What is Mediation? For one thing, it is Voluntary

The question, What is Mediation, may be a simple one; the answer is not.

There is plenty of confusion over what constitutes mediation, and many different areas of mediation practice:  labor/employment; international relations; commercial, civil court; community; environmental; divorce; family; environmental; and more.  There is ‘transformative’ and ‘evaluative’ mediation.  Mandatory and voluntary mediation.  Mediators themselves may mean different things when they use the word ‘mediation’.

I’m writing here to discuss what I do and how I practice.  And, while I believe that I can clearly explain how I follow the process, I don’t think it falls neatly under any particular label.  In fact, within certain boundaries, I may work somewhat differently with one couple (or group) than I do with another.  That being said, for me, mediation has certain cornerstones that I follow in every case.

One characteristic of mediation, as I practice it, is that the process is:

  • Voluntary
    • Clients who see me choose to do so.  I begin with a consultation, and it is up to the spouses (in a divorce situation) whether to schedule one.  If yes, the parties attend together.  We are all in the same room at the same time.
    • After the consultation, the spouses decide whether or not to try mediation (though I will tell parties if I don’t believe I can assist them, so as to save them time and money).
    • Once mediation begins, either spouse is free to discontinue at any time; to literally walk out.  Either party can choose to end the mediation at the first session, or at any session thereafter (if the case involves multiple sessions, as divorce cases do).  If a spouse ends the process, s/he is free to begin or continue with court proceedings, as if the mediation had never taken place.

To be continued. . . . .


Introducing My Blog

Welcome to my blog!

My goal is to discuss divorce and other family matters, such as marital problems between spouses who want to remain together, and parent-child conflicts.

In large part, I will offer information about mediation, which is a way to resolve conflicts without going to court.

Additionally, I intend to write about:

  • Attorneys (I happen to be one myself) and litigation;
  • Matters that affect families (such as what children are most concerned about when their parents divorce), regardless of whether the parents choose mediation or litigation.

I hope you will find material here that will benefit you and your family.


Lee Chabin