In some cases, family mediators can have the sense that the forces really driving the conflict— or advocating for resolution— are not in the room.
These “non”-parties can be loud, influential and important. How can mediators acknowledge and even include them in the process, directly or indirectly?
In particular, how do mediators balance the need to hear all important voices with ensuring voluntary participation, protecting the confidentiality, safe-guarding neutrality and impartiality, addressing power imbalances, and maintaining boundaries?
Ensuring voluntary participation: Step #1 is to secure the consent of all involved. When we are told by a client that they need to have their parent, sibling or new partner present, we must ask their permission to advise the other party and seek that other party’s consent. Mediation is voluntary and confidential. If anyone other than a lawyer is to be privy to what happens during the mediation, all parties need to agree. This is true whether the third party will be in the same room in a joint session or a separate room for a shuttle mediation.
Preserving confidentiality is paramount. A recent Google Review about my mediation services said I was “…extremely confidential”. This was great for me to read! As mediators, we build trust in many ways; preserving confidentiality is one of the most important ones because it lets clients feel safe sharing sensitive information.
Once we have the consent of all, third parties should confirm they will respect the confidentiality of the process and then sign the Agreement to Mediate so they too are bound by its confidentiality requirements.
During the mediation, any input from third parties should be carefully recorded by the mediator in their notes.
Guarding neutrality is essential to ensure that the mediation process is fair. We remain neutral by not allowing our opinions or emotions to influence the mediation. We do this by not taking sides on an issue no matter how persuasive a client is. When we interact with third parties, we must be careful not to telegraph alignment with them by our actions and our words.
Guarding impartiality is mandatory. We do this by facilitating a fair process that focuses on the issues for mediation. This involves establishing ground rules and boundaries for third-party participants, such as requiring that all participants use respectful language and tone, and avoid personal attacks or derogatory remarks.
Third parties can provide helpful context. However, they must respect that context does not mean conflict and that a productive mediation requires that personal grievances are kept outside the door.
The mediator should guard against interruptions by third parties or a third party monopolizing the mediation time.
The mediator must remain impartial and ensure that no participant, including third parties, influences the process or outcome unfairly.
Addressing power imbalances is a critical part of the mediator’s job as power dynamics can impact the fairness of outcomes. Dealing with power imbalances when third parties are involved may require adjusting the mediation format, for example, employing shuttle mediation, especially if one party is attending on their own while the other party has a support person with them.
The mediator should also ensure that the supported party is not relying entirely on the third party for responses and having that third party assume the negotiations. The autonomy of the mediation clients must be supported. It is their mediation and should not be derailed by a third party.
Maintaining boundaries: Mediators must establish clear boundaries regarding their role and the role of the third party. The mediator’s role is to facilitate discussions between the parties, and the third party is there to assist where necessary and provide support to their friend or relative. A third party’s participation is not carte blanche. They are not in mediation to take over the mediation discussions directly.
Having third parties present at the mediation can be helpful and even essential for making a durable agreement. For mediators, who often only learn at the last minute that a third party is intending to attend, following these protocols will help them ensure the credibility of their process.
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