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Being a Neutral and Being Neutral

August 10, 2013

For lack of a topic, I looked up today’s Torah portion in our annual reading cycle.  It turns out that today’s portion, called Parashat Shofetim (Deuteronomy 16:18-21:9), is about judging.

This gave me some inspiration for today’s post.

Mediators are not judges.  We are, however, neutrals, and we must remain impartial at all times.  See, California Rules of Court, Rules 3.852, 3.855.

These rules are as old as our tradition:

“You shall not judge unfairly: you shall show no partiality….”  Deuteronomy 16:19.

As a mediator, I take these concepts to heart every day.

My own rule is to show no favoritism to either side, which takes conscious effort because often, not always, I have worked with the lawyers from one side or the other or both in the past (and they pay my bill).

Nevertheless, each side is entitled to my utmost effort, which I try always to give, to remain impartial and in that sense to remain “fair” and “just.”

For in Deuteronomy it also says, “Justice, justice shall you pursue….”  Deuteronomy 16:20.

(Note, to me as a mediator this still does not mean I should render a decision in the case or take away the ability of one side or the other to decide for himself or herself whether or not to settle.)

And this is consistent with mediation practice:

As mediators, and therefore neutral and impartial, we must make sure that self-determination governs the day and that no one is coerced into a resolution that he or she does not want.  See, California Rules of Court , Rule 3.853.

For the most part, this is why I try to refrain from evaluating the case, that is, from giving my opinion as to the likelihood of success (or not) on the merits, unless pressed for it.

However, when it is demanded of me, I do call upon my background, training and experience from law practice to enlighten people as to their risks, especially when I feel it will help.

In fact, my retainer agreement expressly authorizes me to do so; and when people have signed it, they have granted permission and voluntarily agreed to allow my evaluation if it will help bring about resolution.

But I still don’t like to do it if avoidable:  evaluation potentially does interfere with self-determination.

That is always the dilemma.

On the other hand, sometimes people do need the reality check that evaluation will provide, for otherwise, they may be so self-deluded that they truly cannot see their predicament.

So, sometimes, when people ask, “what do you think of my case?” or “Is my case in trouble?” or “Do I have a loser?” or words to that effect, I tell them what I think, as diplomatically as possible, which sometimes startles them nevertheless.

But am I taking sides?  Showing favoritism for the other side? Not being neutral anymore?

I don’t think so, for the evaluation, if it occurs, is done gently and in private, is not revealed to the other side, and it only occurs when people, or the circumstances, demand it of me and when I have their trust.

Otherwise, people cannot make informed decisions for themselves on whether or not to settle, particularly if they have not otherwise taken into account the relative risks of not settling.

And in that sense, even if I have given an evaluation, I think I have helped, I have remained neutral and impartial, and I have allowed for informed self-determination.

***

David I. Karp is a full time mediator of real estate and business disputes in Southern California.  His website is at http://karpmediation.com .

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