What is the proper role of a mediator? Is it appropriate for mediators to recommend sanctions against one party for not negotiating in good faith? Should mediators attempt to get similar outcomes for similar cases? These two questions, which arose from two articles on the Nevada Foreclosure Mediation Program published in the Reno Gazette Journal in July, highlight that age-old question of whether mediators can be fair and neutral at the same time (Unfortunately, the articles are no longer available online). In the first article, a mediator complains of not being assigned cases because he has recommended sanctions – and states that mediators should be able to do so. In the second, a legislator states, “If you have a situation where two homeowners share the same facts, and two different mediators get different results, that shouldn’t be happening…I think the court will have to step in with some rules to guide mediators so that they are all in step with the program.”
These two statements share a common thread – the desire for mediation to be fair in a way that it perhaps cannot be. They demonstrate the tension between basic tenets of mediation – neutrality and self-determination – and the perception of fairness.
Recommending sanctions against a party who doesn’t negotiate in good faith may seem fair, but it certainly isn’t neutral. It creates a situation in which the mediator becomes an adversary to one of the parties. Working to ensure that similar cases have similar outcomes appears fair to all involved, but would require a mediator inserting herself into the decision-making and in individual cases assisting one party over another in order to get that outcome, while also forcing the outcome in ways that particular parties may not want.
Does the need for fairness trump neutrality? Should a mediator violate self-determination in order to ensure a fair outcome? Surely not, but those who do not understand the underlying rationale for mediation – and some who do – often try to push mediators into behaviors inconsistent with that rationale in an effort to impose their sense of fairness on the process. Fairness is, of course, necessary to mediation as well. But it is the individualized sense of fairness that matters, not an objective standard enforced from the outside.