Can Mediators Be Impartial and Address an Imbalance of Power?

Divorce and Family Mediator, Susan Ingram, discusses maintaing impartiality while keeping parties balanced and informed during the mediation process.

In my last blog article, I questioned whether a mediator could be either neutral or impartial. As I discussed, for me personally, the term “impartial” is more relevant – and something I continually strive for when I am mediating with my clients.

How does this actually play-out in a mediation? Sometimes with difficulty, and a great deal of challenge. Let’s face it – even with the best of intentions, we’re all just human. I will frequently check-in with myself to question whether I am maintaining an unbiased position toward each of my clients. Then, if I sense there’s an issue, I’ll try my best to adjust my approach.

So how does the concept of mediator impartiality sync (or not) with the issue of an imbalance of power between the parties? One of the most common imbalances I see in divorce mediation is a difference in knowledge. For example, one party may understand financial matters well, while the other may not only be much less knowledgeable, but may have, in fact, left all of the financial decisions to their spouse during the marriage.

Now, as this couple is going through divorce mediation, they both need to have all necessary information in order to make informed decisions about their finances. This means that, very likely, a financial advisor will need to be brought into the discussion, principally to bring the less knowledgeable spouse up to speed.

Does this impact my ability to be impartial? No – and I believe that both concepts, impartiality and balancing power, can co-exist. I can strive to be impartial and also attempt to balance the power between the parties so that both can make informed decisions.

Kenneth Cloke, a highly regarded mediator who has written several books on the subject, has coined the term “omnipartial” to describe the role of the mediator. According to Cloke, the omnipartial mediator is partial towards all participants – that is, on all sides at the same time. I find his description particularly appealing, and I believe it supports the mediator’s desire to balance the power in the room without taking sides.

What are your thoughts on this subject? Please share them in the comment box below.

 

Comments from Social Media

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Love that moniker, Susan. It corresponds with “neutral negotiator” which makes no sense to some people but reflects exactly what we do. My first priority is to subvert conflict with collaboration. Do whatever it takes to animate a conversation that might lead to an actual result. A result everyone can live with. From a certain perspective, that’s a success all the way around with no “losers.”

Roger A. Moss

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I love the term ‘omnipartial’. I was introduced to this about a year ago. Thanks for sharing your views.

Rajiv Chelani

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Hi Susan: The process of using an Integrated Team in divorce situations, particularly with couples who are highly conflicted is excellent. The more information and support you can give in the situation, the better chance for a successful outcome. The only drawback is it can be very expensive with all those professionals in the room!!

Deborah White

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3 responses on “Can Mediators Be Impartial and Address an Imbalance of Power?

  1. Halee Burg

    HI Susan,

    I couldn’t agree more. While I do not believe it is or should be a mediator’s goal to perfectly balance power, nor do I believe that is achievable, I do believe we must be ever mindful of power imbalances and power shifts in the mediation. I think we can, and should make process decisions that will serve to ensure that parties make informed decisions, and those kinds of process interventions often are related directly to, or triggered by, power imbalances. I am often puzzled when I hear mediators say that techniques to balance power are inconsistent with neutrality, as I think one could argue that every process decision we make in some way impacts, or may impact, the balance of power between the parties. From seating arrangements, to caucusing, to whom we caucus with first (for those who caucus), to inquiring whether the support of outside professionals would be helpful to the parties, and so on – each of these can impact the balance of power in the room. One could also argue that if a mediator truly does nothing in the face of observable power imbalances, particularly if the mediator believes the imbalance is affecting a party’s to make self-determined and informed decisions, that inaction is not neutral, and that knowingly allowing the power imbalance to persist is, through inaction, favoring the party holding the power. Thanks to Ken Cloke for the notion of the omnipartial mediator, perhaps a truer expression of our role.

  2. Daniel Burns

    I really like the phrase “omnipartial”. Most couples want to know that they are making good decisions and expect the mediator to help them do so. By being omnipartial we can provide the information each participant needs to make good decisions without taking sides.

  3. Michael Pollack

    Yes, omnipartial is a perfect word for what we do. I often say that our job is to prevent the parties from giving away the store or leaving money on the table. This means that both parties must know what they have (what their “store” is worth) and what the other side has to offer (what money is “on the table”). A good mediator should be able to help both parties do that.

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