Neutrality is a sticky issue, as I observed in a recent workshop.  In the workshop, we were role playing a divorce mediation. The wife suddenly said that she was agreeing to what the husband wanted, but made it clear that she was doing so because she was tired of arguing and didn’t think he’d ever give in.  All the mediators in the room agreed that the mediator should not just accept the agreement and move on, but there was disagreement about precisely how to proceed and what to say. One mediator thought that it would be best to start talking about the details of what they had agreed to and to “re-open” the discussion. My thought was that it would be good to be transparent and explain that the parties need to both be comfortable with the agreement since otherwise there is no real agreement. I would then suggest that we continue discussing the issue until both parties are comfortable with whatever they agree to.

The key here, in my mind, is that the parties understand that the mediator wants to make sure that the parties have both thought through the agreement and are both comfortable with it. Whatever language is used to convey that, is fine, and there are infinite ways of doing so. But there are also infinite ways of conveying the wrong message. It is important that the mediator not behave in such a way that the parties conclude that the mediator wants to undo their agreement; wants to side with the party that is balking; wants to convince the parties that what they have agreed to is not a good idea, or the like.

If the mediator were to launch into a reopening of the discussion about the issue without explanation or without a hint of why it was being reopened, one party might conclude that the mediator is trying to derail the agreement that party wants. Or, the parties might both feel that the mediator is questioning both their judgment, and substituting his or her own. Neither of these is desirable, in my mind, and can lead to a derailment of the mediation. Instead, it is best for the mediator to convey in any way that works for that mediator, that the mediator wants to make sure that the parties are both comfortable or satisfied with the agreement and that they have really thought about it (and received any appropriate advice from outside professionals that they might need).


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