An interesting exchange at the IAM
conference in New York
centered on issues associated with the mediator having frequently worked with one of the attorneys or parties in other mediations, while being introduced to the other participants on the other side for the first time.
Often the “repeat player” will innocently greet the mediator warmly, signaling a high degree of familiarity. Staff members at the firm hosting the mediation may walk by and call out a greeting in the waiting area, while the opposing party is present, waiting for his counsel to arrive. This can send a chilling message, and get the mediation off to a poor start; all due to a perfectly normal and innocent gesture.
First, it is critical that mediators be aware of this phenomenon, and take proactive steps to offset any impression of favoritism. The unfamiliar party and counsel should be warmly greeted by the mediator informally before the mediation begins, and engaged in conversation. By showing an interest in their individual backgrounds and seeking to identify common acquaintances or interests, the mediator signals a social evenhandedness, offsetting the negative effect of focusing solely on the familiar faces during the premediation socialization period.
If the mediator determines to project the aura of neutrality from the time he or she hits the door, any potential problem should be minimized. Here, an ounce of prevention is worth a pound of cure.