In the high-stakes setting of construction mediation, the impartiality of the mediator can significantly impact the outcome. This begs the question put forth in an important piece on JD Supra: Is Your Construction Mediator Really a Neutral Who’s Neutral?
This query is crucial, given that the effectiveness of the mediation process relies on the developer, contractor, or any party involved feeling adequately represented by a fully impartial mediator. A perceived lack of neutrality can undermine any potential resolution, leading to lengthy, costly, and counterproductive disputes.
The issue of mediator neutrality is not solely about construction. Harvard University’s Kennedy School of Government offers an Executive Education course, Negotiation Strategies, which highlights the importance of strategic tact during negotiation. According to JD Supra, the course teaches the adage that negotiation is the art of letting the other side have it your way. It underlines that the ultimate tragedy during negotiation is overpaying for an issue the other party did not even prioritize as important.
This very idea carries over to mediator roles across various fields. Their responsibility is to facilitate communication, deescalate disputes, keep negotiations on track, and ideally guide parties to a suitable, amicable solution. If a mediator fails to remain impartial, the tangible impact on the negotiation process and its outcome can be severe. The guiding principles of the mediator must always include integrity, fairness, and, above all, neutrality.
But how can one ensure their mediator’s neutrality? There is no straightforward answer as this topic often falls into the grey areas of law and ethics. A mediator should undergo rigorous due diligence before assignment. Also, the legal professionals involved in the selection process must adopt a keen sense of discernment when appointing mediators. The careful consideration of a mediator’s demeanor, reputation, and prior mediation performance can serve as valuable tools for determining his or her neutrality.
Maintaining mediator neutrality is complex yet critical for the success of construction mediation. However, it would be beneficial for all parties involved to remember that the pursuit of neutrality starts not at the negotiation table but well before, with mindful and rigorous selection processes.