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Mediation: The Importance of Neutrality



“Trust resides squarely between faith and doubt.”  Warren Bennis
Mediators are governed by certain rules promulgated by the Florida Supreme Court known as the “Florida Rules for Certified and Court-Appointed Mediators”. The cornerstone of mediation is the neutrality and impartiality of the mediator. In order for the mediator to be effective, he must gain the trust of the parties. This trust, once established, will be quickly lost if the mediator exhibits a bias in favor of one side or the other.  
Rules 10.300 through 10.370 deal with the conduct of a mediator, and require impartiality and the  avoidance of coercion, improper influence and conflicts of interest.  The mediator is responsible for maintaining the appropriate demeanor, preserving confidentiality and adopting practices which reflect fairness, integrity and impartiality.  The Mediator Qualifications Board (MQB) is empowered with the responsibility of enforcing these rules by conducting hearings on complaints and imposing sanctions for violations. The findings of the MQB are reviewable only by the Chief Justice of  the Florida Supreme Court, or his designee. (Rule 10.880).
In the case of  In Re: Jason T. Banks, Case Number: MQB 2010-001, the mediator was found guilty of violating the prohibition against conflicts of interest due to his friendship with one of the participants in the mediation, and because he assumed an adversarial position to the other participant.  He continued to advise and counsel the participant with whom he had the friendship after the conclusion of the mediation.  The result was a de-certification of the mediator, who was also barred from serving as a certified mediator in Florida.
In the recent case of In Re: William J. Jatczak, Case Number: MQB 2010-010, the Mediator Qualifications Board found that the mediator did not maintain the appropriate demeanor during mediation by virtue of comments to one of the litigants about her appearance and her jewelry. The comments were also considered to violate Rule 10.350, requiring the mediation to be conducted in a dignified and courteous  manner.  The offending mediator was sanctioned for failing to conduct a balanced process, with lack of dignity, and giving the appearance of partiality to one party and insensitivity towards the other.  
The mediator should discuss his role as a neutral facilitator during the orientation session.  However, he should also explain that each party should expect to be asked the “tough questions” about his case during the separate caucuses.  If the parties are  prepared for this,  the mediator’s role of neutral facilitator will not be undercut unless he goes too far and exhibits a bias in favor of one of the parties.  When this occurs, the trust factor is lost and the mediation will be doomed to failure.