March 21, 2015
Neutrality: What Does That Actually Mean?
I was sitting down with two potential clients in a one-hour consultation the other day when one of the people said to me, “Explain your approach to being neutral. I mean, you’re supposed to work for both of us…how does that work?”
I started developing my answer to that question at the beginning of my career when I took my mediation training from Gary Friedman. In his seminal book, he coined the term ‘positive neutrality’ which turned on its head the conventional wisdom of the day which interpreted neutrality as essentially abandoning clients to their own views, understandings, and impulses, with the mediator essentially struggling to “not participate in any way.”
Let’s take a moment to acknowledge how huge Gary’s idea of positive neutrality was 20 years ago. When the mediation of legal disputes first started, it was practiced by attorneys who had spent their entire careers in the adversarial system, which by its very nature forces attorneys to try to identify “the truth” of the situation before them, to see the situation as having opposing sides, and to fight for and protect their client. Therefore, neutral behavior back then was seen as being the opposite of the traditional, biased, attorney approach. So to avoid inadvertently advocating, mediators tried not support, protect, or educate clients, and struggled to not have any opinions or responses of their own. In contrast, positive neutrality is practiced from the view that mediation is not the opposite of the adversarial system, but rather is an entirely different approach to conflict resolution.
For me being neutral means supporting both people to achieve their best possible outcome, as they each separately define it. It’s my job to educate people about their options, reviewing the potential risks and benefits of different approaches, and helping them give informed consent through understanding the legal landscape outside of the mediation process. Since I am not charged with being a fact-finder, I am able to believe and support both clients, even if their views of their past, their situation, or their futures are different. (Though one of my repeated statements is a kindly said, “Trust but verify.”) Further, I do not see either my divorce or my prenuptial clients as having opposing interests, or there being sides to their situation from which I could choose one side versus the other. Instead, my clients all have some overriding mutual interest, whether it’s to divorce amicably or to stay in love while talking about money and property. My clients ask me to steer one cohesive process with mutual recognized goals.
And, yes, when the mediator is acknowledged as a person in the room, the mediator has to be self-aware and transparent about her or his own reactions and thoughts. For instance, in a session the other day I started by saying, “I have a fear. I have a big fear that we’re going too fast. I am concerned you’re going to regret making decisions so close in time to your separation when just getting everything settled can seem more important than making deeply considered agreements which will stand the test of time.” The clients listened to my fears, considered them, discussed their thoughts on timing of the process, and ultimately decided to keep the same pace, which I completely supported. Neutrality demands that mediators do everything possible to expose clients to the wealth of information and instinct which have resulted from their education and career experience, but ultimately they must leave all decisions to the clients. The clients need to understand their situation and options and have all the support and information from outside sources that they might need to make the best decisions possible.
A small side note about positive neutrality is that it can be a toxic approach for someone with either a high-conflict personality or who feels severely disadvantaged or victimized by the other person somehow. Either of these situations can make it impossible for them to watch the mediator, who has supported them, been kind to them, ensured that they understand their situation, and otherwise “protected” them, turn right around and give the same services and care to the other person. For a client in either of these situations, the mediator’s solicitation to the other client, while merely keeping the process balanced from the mediator’s point of view, can seem like the ultimate betrayal for someone who lives with the mindset that to be kind to the other client is tantamount to siding with the other client, and therefore not siding with them. Due to this reality, it’s not unusual for me to ask potential clients in a free 15-minute phone consultation, “How would you feel if you watched me making sure the other person understands everything, that they can justify their views in relation to the big picture of their life goals, that they have all the information and support they need to make clear decisions? Would that feel okay to you?” I do this because every once in a while a person says, “No way could I handle that…I’m realizing maybe I need more distance and my own professional to get through this.” In light of this reality, working with a neutral professional who practices positive neutrality can work really well for some people, but is not automatically the best fit for everyone.