At Harvard University’s Kennedy School of Government, they teach an Executive Education course called Negotiation Strategies upon an adage, among others, that negotiation is the art of letting the other side have it your way. You learn that the greatest tragedy in negotiation is overpaying for something the other side did not even care about.
Correspondingly, parties in dispute resolution often depend on an experienced mediator, or “neutral,” whose success as a negotiator depends on their impartiality during the negotiation. Parties sensing favoritism or undue harshness from a mediator may have doubts about the mediator’s negotiation strategy. The parties, instead, want a mediator who focuses on prioritized interests, evaluating relationships, managing the process, protecting confidentiality, and closing the deal.
By the time parties have resorted to hiring a neutral negotiator to aid in resolving the parties’ dispute, the parties may still come to mediation to disagree, not to agree. Thus, a good “neutral” as mediator “functions specifically to aid the parties in resolving the controversy. A “neutral” is supposed to be “indifferent…refraining from taking sides in a dispute.” BLACK’S LAW DICTIONARY 1063 (7th ed 1999). And mediation is about conciliation, mostly because it is non-binding. BLACK’S, id. at 996 (defining “mediation”). Other than their fees and costs, mediators have no stake in the matter; neither do they have authority to force terms of settlement. So, opting for mediation, even when mediation may be required by the parties’ contract, means the parties are ready for a neutral to foster compromise and resolution.
In my experience as a mediator, showing neutrality is crucial to earning both sides’ trust and confidence. Attorneys and key players on both sides of the negotiation will often research the mediator’s personal background and litigation experience to weed out biases or preferences that they believe might influence negotiation.
In construction cases, all parties want mediators with diverse exposure to development, construction, and design disputes. Construction mediators also need to show their neutrality when dealing with project managers, design professionals, litigation experts, insurance adjusters, and property owners — all of whom have their own way of judging a mediator’s neutrality and understanding of the key issues.
Neutrality is also an ethical requirement for mediators. See Model Standards of Conduct for Mediators, American Arbitration Association, Standard II, Impartiality (2010); Mediator’s Ethics Guidelines, JAMS Mediation Services, Guideline V. Immediately vetting conflicts of interest shows the parties that the mediator is determined to identify and eliminate any appearance of unfairness. Undetected and uncleared conflicts could reasonably cause the mediator’s impartiality to be questioned. Especially in construction cases, mediators should maintain their impartiality before, during, and after the mediation, mostly by protecting the confidentiality of negotiated agreements between the parties.
The best neutrals are, therefore, genuinely neutral. Showing impartiality immediately and persistently will improve the mediator’s chances of closing a negotiation successfully. A successful mediator should, nonetheless, convince you that the mediator’s impartiality helped the other side have it your way.
