The first thing that happens is that where two parties in a dispute agree to approach a non-aligned “neutral stranger” and ask her to make a determination for them. There could be an entire range of attributes that might give the decision maker an ability to effectively manage the matter. The parties begin to trust the neutral as they know she has no stake in the matter. Why do they trust the neutral? Because of her “no stake” in the situation, reputation as a wise decision maker, professional training and background. Once there is a third party intervention in the resolution process there is a thin line between mediation and umpiring, which essentially is a boundary in analytical terms. The power of decision making is submitted to a third party, and here comes the aspect of facilitation on the one hand and determination on the other. When the parties agree to present their case to the neutral stranger, there is no issue of legitimization. The parties’ very agreement confers legitimacy.
We are alive to the possibility that, in essence, we have made the process seem more of a challenge and demanding than it really is. Dispute resolution has always embraced the concept of voluntary engagement, which could mean encouraging engagement and continued engagement. In reality, it is disappointing to have to address the issue of formal duty. The bitter and costly affair of dispute settlement has required the parties to give serious consideration to putting into place a system designed to cope with disagreements and manage relationships; and to have a dispute system design in place. What amounts to success in mediation is the process that offers opportunities to restore open and direct communication between the parties themselves. The neutral gives the confidence that misunderstandings can be sorted out, the priority and the weight of each case made clear, risks appraised, and choices made over whether to shift or to stick to positions. A neutral will take efforts to encourage frank communications possible within in a safe environment.
In clarifying the role of the neutral, it is indispensable to distinguish between the fundamental elements of process and outcome. The mediator is the core individual who is vested with the process. The parties are free to negotiate or not, make offers or not, settle or not, it is their dispute and their decision. This is what makes the process attractive. It is not for the mediators to ensure that the outcome is what they consider to be just. The parties are free to seek as much perspective from the mediator on what is fair as they wish. Exploring the interests and gaining the trust of all present during the mediation process is very important for what is likely to occur in the later stages of the process. It can be quite unsettling for those new to the process to engage in conversations with the neutral. Perhaps giving an indication of approachability is a key to gaining trust with the parties. An experienced neutral will go that extra mile stimulating discussions, analyzing issues and offering solutions without crossing boundaries on expressing views on merits unless asked to do so.
In some instances, the mediator requires a thorough and imaginative preparation. Mediators exhibit different styles for different issues as the aim is to establish a cooperative working atmosphere to create a problem-solving venture. The issues are discussed in an analytical and objective way to help the parties reach a better understanding of the strengths and weaknesses of their respective cases. There are careful choices to be made. For instance, in explaining convincingly and respectfully to a bereaved party about their claims, recognizing and respecting emotions and so on. In reality, it is very intuitive. It is less technical and more flexible and certainly not an unrealistic soft process. The ADR enthusiasts always talk of win-win and this might turn out at the end of a long day. The truth is that what almost all users of mediation really aspire to is to avoid win-lose outcomes and possible predicament. As actuality falls short of expectation at times and neither party has achieved it all but each has given some and taken some.
In conclusion, the neutral stranger has a story to tell, which is more interesting than we imagine to be. Irrefutably, it is their experience with each session that is encountered with enormous excitement. Perseverance can be the difference between a mediator who is average and one who is excellent but each of them own their sharp practice skills. The stories remain with the neutral and adds value to their bundle of rich experience in dispute settlement. The stories turn as strategies and are never revealed, perhaps acquiescent with the professional training to be eligible for upcoming sessions.
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Harshitha Ram is an international disputes attorney and arbitrator. She is the founder of Lex Apotheke offering legal and dispute resolution services. Ram holds a masters in Dispute Resolution from the University of South Wales, UK. She has a global practice and handles issues in versatile domains. She serves as both Fellow and panelist in numerous national and international arbitration panels and is a globe-trotter. Besides being the Fellow of the Chartered Institute of Arbitrators (CIArb), she is on the panel of commercial arbitrators at the American Arbitration Association (AAA), chair, The Michigan Dispute Resolution Journal initiative of the Diversity & Inclusion Action Team (DIAT), Affiliate, ADR Section - State Bar of Michigan, panelist, and Professional Resolution Experts of Michigan (PREMi, http://premiadr.com), an invitation-only group of Michigan’s top ADR professionals. She represents clients in the capacity as both counsel and neutral. She is frequently invited as a guest speaker, lecturer, and ADR trainer by Universities and ADR service providers in the UK, USA, Europe and Asia. She is currently leading an international program on accreditation of ADR professionals worldwide.
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