Fairness in Mediation: The Different Types of Mediator Styles

The ability for a mediator to demonstrate fairness is critical to ensuring that the parties feel that they are in a safe and neutral environment to resolve their conflict. Mediators have a difficult job trying to manage the conflict of two or more parties while maintaining a neutral sense of order.

Fairness in mediation is essential to the process. Fairness can be demonstrated in many different ways. In my paper, I will examine three areas of fairness in mediation. First, I will discuss the different types of mediators and ways in which they demonstrate fairness. The second area I will examine will be a general summation of how mediators demonstrate fairness. Lastly, I will discuss ways that mediators can demonstrate procedural, psychological and substantive fairness.

The Types of Mediators

The type of mediator chosen is critical the outcome of the mediation. According to Chris Moore, there are five types of mediators. The first type of mediator is known as a social network mediator. (Moore, 2003, pp.44-45) This type of mediator may already have a prior or expected relationship with the parties that they are mediating for. The social network mediator may not be considered an "impartial" mediator per se, but is considered to be "fair" by the parties. (Moore, 2003, pp.44-45) This type of mediator may utilize their "personal influence or peer pressure on the parties to promote a desired outcome." (Moore, 2003, pp. 44-45) Again, this is why it is important to make sure that the type of mediator selected is the right one for the parties.

The second mediator I will discuss is the benevolent mediator. The benevolent mediator is similar to the social network mediator in the way that they may or may not have a relationship with the parties either in the past, or present. (Moore, 2003, pp. 44-45) The benevolent mediator actively "seeks the best resolution for all parties". (Moore, 2003, pp. 44-45) This type of mediator does not have a vested interest in the mediation but may "use their resources to help monitor or implement the agreement between the parties." (Moore, 2003, pp. 44-45) The benevolent mediator does not tend to use their influence over the parties and within the community to move the resolution in a specific direction or to suit their needs.

The third mediator type is known as the administrative /managerial mediator. The Administrative/Managerial mediator may already have an "authoritative relationship with the parties before, or after the relationship is terminated." (Moore, 2003, pp. 44-45) This may be some one who is in law enforcement, an attorney or even an arbitrator. There are of course many other possibilities of people in authoritative roles. This type of mediator will "seek a solution that may entail boundaries or mandated limits". (Moore, 2003, pp. 44-45) Due to the authoritative role of this type of mediator, they do have the "power to enforce the agreements between the parties". (Moore, 2003, pp. 44-45) Fairness may be under scrutiny with this type of mediator. This may be an ideal type of mediator in the sense that for situations which the parties cannot come to a decision about the situation.

The fourth mediator is the vested interest mediator. The Vested Interest mediator may have a current or expected relationship with the parties. This type of mediator may also have a "strong interest in the outcome". (Moore, 2003, pp. 44-45) This type of mediator like the social network mediator will use their influence to leverage or coerce the enforcement of an agreement. (Moore, 2003, pp. 44-45) The vested interest mediator would not be the type of mediator that most people would want to use to save a relationship. These types of mediators will strive to sway the decision in their best interest and not in the best interest of the parties in all cases.

The fifth mediator is the independent mediator. The Independent mediator may be described as the fairest of the mediators. This type of mediator is considered to be "neutral and impartial regarding the relationship of the parties". (Moore, 2003, pp. 44-45) Independent mediators "serve to help the parties" solve their conflict. (Moore, 2003, pp. 44-45) Independent mediators have no authority to enforce any agreements that are made between the parties. In the end, the parties are also responsible for the outcome or termination of the mediation. Independent mediators allow the parties to come to their own conclusions without unnecessary influence by the mediator's personal interests.

How Mediators Demonstrate Fairness

The term fairness can be applied to the way a person conforms to rules or standards. It can also be the ability to make decisions without being discriminative or dishonest. Mediators are able to demonstrate fairness in many ways, through verbal and non verbal means. Some of the ways that mediators can demonstrate fairness may be subconscious or unconscious, depending on the mediator and of course the scenario. This can include their body language and tone of voice.

One of the best ways mediators can demonstrate farness is by allowing the parties to "have more active participation in and more control over their processes for solving their own problems than most traditional methods of deciding with conflict." (Singer 1994 p.5)

Mediators can also demonstrate fairness in the way they remain impartial and do not allow themselves to be tied to the conflict personally. In demonstrating fairness to the parties, the mediator should offer a "safe and neutral environment" for the parties to talk. (Singer, 1994 p. 19) If the mediator were to intervene at inappropriate times it would not demonstrate fairness to the parties.

Many times mediators are viewed as facilitators. This can be a positive attribute because most facilitators ensure "that everyone is able to speak and be heard." (Singer, 1994, p.24) Mediators should be able to confidently facilitate the process for the parties and not be emotionally involved in the process the way the parties are. In general, most mediators have no actual vested interest in the outcome, or possible agreements that may result as part of the mediation process. By remaining neutral, the mediator serves as a catalyst to demonstrate fairness to the parties. Mediators are also seen as peace makers or problem solvers. The mediators can help the parties "solve concrete problems" and not to enabling blaming between the parties. (Singer, 1994 p. 39) It is imperative to the fairness of the process, that when negative or blaming situations occur that the mediator can act quickly and re-frame the dialogue into a more constructive tone.

Mediators can help achieve a fair balance by helping the parties to distinguish between "interests and positions". (Singer, 1994 p. 17). With this skill, the mediator can help the parties address the real issues, and not further enhance personal attacks of the parties against each other. By addressing the interests, the parties will each be given equality in their time to discuss the issues. The mediator should use their skills to provide an even playing field for the parties. There are some conflicts in which the parties may not want to utilize a mediator who knows them personally or about the history of the conflict. There are many types of mediators and not all types are suitable for all situations.

Fairness can be demonstrated in the way in which mediators intervene into the conflict between parties. It is important for the mediator to "allow the parties to agree and disagree." (Moore, 2003, p. 64) If the mediator does not allow for the parties to have opinions and interests in the issues, they will lose their neutrality with the parties. The mediator should serve as a guide to the parties. This means that the mediators should not try to coerce or pressure the parties to take specific stances or make decisions based upon the mediator's preference for an outcome. Respecting people's values is critical to demonstrate fairness in mediation.

When dealing with relationship issues, the mediator must remain neutral to demonstrate fairness to the parties. Relationships, especially broken ones can become inflamed with emotions which can cause people to think irrationally, and more with emotions than sense. The emotions of the mediator must remain unknown in this type of situation. "Once the mediator lets their emotions surface" about the issue it can create catastrophic problems for the parties. (Moore, 2003, p. 65)

With the influx of emotions, the mediator will not have a leg to stand on if they upset the delicate psychological balance of the parties by interjecting their opinions or feelings into the mediation. If a mediator is unable to remain neutral and able to balance the ball of fairness, they should excuse themselves from the mediation. Remaining fair and neutral in the mediation process is critical for the mediator. If the mediator cannot remain neutral with the parties, they may destroy any progress that has been made or would be made. A simple way to help the parties in very difficult mediations such as relationship issues is to clarify and re-state what has been said between the parties. The mediator can serve as a role model for how to treat people as well as how to work together fairly. This also demonstrates that communication does not have to be unreasonable, even though the relationship is currently under a strain.

An imbalance of power can go in a negative or positive direction depending on the actions of the mediator. If the mediator is able to "equalize" the power imbalance, it will most likely demonstrate fairness. (Moore, 2003, p. 71) However, if the mediator allows for the power imbalances to occur, it may have a detrimental impact on the potential outcome. This is why it may be helpful for the mediator to intervene on behalf of the "weaker party or to influence the stronger party" to even the playing field. (Moore, 2003, p. 72) This is a delicate issue, because if it is done incorrectly the neutrality may be lost and the parties will not see fairness even though the mediator wanted to equalize the imbalance of power. Some critics say that to keep fairness in mediation, that it is the responsibility of the mediator to ensure that the "power is equal", while other critics do not agree. (Moore, 2003, p. 72) In the end it comes down to how the mediator utilizes their skills to determine the best way to deal with a power imbalance.

Creditability is an important skill to demonstrate fairness when mediating. Without credibility the mediator will not be able to help the parties build trust. (Moore, 2003, p.91) The tone that the mediator chooses to set for the process will determine if the parties believe the mediator to be fair and neutral. However, in mediation the mediator must help the parties trust the process in order for it to work. Another key element is to help the parties identify the "key interests" in the mediation. (Moore, 2003, p.211) The most important factor is that the mediator "remains impartial and neutral." (Moore, 2003, p.215)

Procedural, Psychological and Substantive Fairness in Mediation

Substantive interests are the needs that a person has in particular goods such as "money and time". (Moore, 2003, p.75) Depending on the parties, these types of issues can bring out raw emotional reactions from people. This is why the mediator must allow for the parties to come to their own decisions within the process. Chris Moore discusses in his book that the "best decisions" are arrived at by the parties. In general, mediators hold the opinion that the parties need "procedural help" not substantive advice. (Moore, 2003, p.78) Instead of offering advice, unless they are asked, mediators should focus on the process and remaining neutral for the benefit of the parties. (Moore, 2003, p.78) Neutrality is a key factor in building trust between the parties in mediation.

Procedural interests are preferences that a mediator has for the way the parties discuss their differences. Example of this would be allowing the parties to each speak their minds. (Moore, 2003, p.75) The mediator should use caution when trying to push their interests on the parties; it can turn against the mediator. In some cases, where emotions are high, the mediator may actually be seen as an instigator or scape goat for the problems

Psychological interests apply to the perceptions of a persons mind, their well being and how they deal with relationships. The way in which the mediator treats the parties can deeply impact the situation and or the parties well being. Mediators who are dealing with situations that are tense should be approached with caution in order to protect the parties from perceiving them to be biased. This can agitate the parties and lead to a disintegration of communication.

Conclusion

In my paper I discussed the different types of mediators, how mediators demonstrate fairness and the impact of substantive, procedural, and psychological fairness on the parties involved with mediation. While there are in fact at least five different types of mediators, there is an endless array of possible scenarios and parties who can benefit from the mediation process. Not all mediators will be considered fair in every situation. The way in which mediators are able to demonstrate fairness is critical to enable conflict resolution between the parties. Fairness in mediation is the only way it can be done correctly for everyone involved. Substantive, procedural and psychological interests are all important factors in mediation. They must all be dealt with in a concealed manner. If the mediator is unable to conceal their personal emotions, or preferences for the outcome of the mediation, all possible progress can be destroyed.

References:

Moore, Christopher W. (2003). The Mediation Process: Practical Strategies for

Resolving Conflict, 3^rd Edition, revised, San Francisco, California, Jossey-Bass

Singer, Linda R. (1994). Settling Disputes: Conflict Resolution in Business, Families,

and the Legal System, 2^nd Edition, Boulder, Colorado, Westview Press