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Forum » Cyberweek Discussions (see Program page for descriptions) » American Bar Association-organized panel on Ethics and Online Mediation » Impartiality

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Author Topic: Impartiality
crule
Administrator
Posts: 17
Post Impartiality
on: October 27, 2009, 11:53

In the introductory thread, Susan wrote:

“I already have questioned the requirement of mediator impartiality because of the tension created between the ethical requirements of mediator impartiality and fairness, especially with respect to the substantive outcome. Perhaps, Colin, you could include this as a fourth thread.”

Hence, this thread. If I may elaborate on the point, however — I think impartiality is a noble goal. But as many have noted (from Janet Rifkin to Sarah Cobb to Bernie Mayer to, now, Wallace Warfield at ACR earlier this month) it is a) impossible, and b) potentially deligitimizing to our field.

I wrestle with this at eBay all the time. Yes, eBay is “neutral” as to outcome between disputants in most eBay disputes. We want justice to be done. But we also want to delight buyers. As it turns out, that’s the most important component of success in e-commerce. So eBay is making policy decisions all the time that rebalance the marketplace between sellers and buyers. In any individual dispute eBay may be neutral as to who should win, but there’s no question that eBay is not even close to neutral in the policy decisions they make around how the market should work. So is it a violation of neutrality to have eBay running the show? I try to build fair and open dispute resolution processes, but the fact is, I am an employee of eBay, and if the powers that be decided that I was not working in conjunction with the interests of the company I’d be out on the street.

So is there a “good enough” standard for process impartiality in ODR? Should we worry about the overall appearance of partiality (the “kangaroo court” phenomenon) more than obsessively trying to wring every last drop of bias that might exist at every stage in the process? I think the fact that eBay cares about outcomes legitimizes eBay’s role in dispute resolution — we could be a bloodless third party with no skin in the game, but that would also remove the incentive eBay has to get involved with disputes in the first place.

I’m curious as to the thoughts of others in the thread. I know that the original ABA/AAA/SPIDR ethical standards I learned when I joined this field in the early 90s might look askance on how my role is set up within eBay, but from my perspective, I think I’m positioned optimally to make the maximum positive impact.

rah

I am the Director of Online Dispute Resolution at eBay and PayPal.

susan202ca
Member
Posts: 6
Post Re: Impartiality
on: October 27, 2009, 16:39

Colin suggested that I past my original posting that generated this thread, which follows:

Orna, who posted earlier today [Monday], suggested that “the difficulties in developing identical equivalents online could lead us to question some of the practices associated with ADR.” What practices might you question?

I already have questioned the requirement of mediator impartiality because of the tension created between the ethical requirements of mediator impartiality and fairness, especially with respect to the substantive outcome. Perhaps, Colin, you could include this as a fourth thread.

During my research of statewide civil mediation standards of conduct, I was able to locate standards in 36 states. These were either court connected or promulgated by a professional organization. Every set of standards requires mediator impartiality, as do the Model Standards. Yet, four or five states also require the mediator to ensure fairness of the outcome. As soon as the mediator aids the perceived weaker of the parties to ensure a balanced, fair outcome, I believe the mediator has infringed on her ability to maintain impartiality. In a series of law review articles, I have posed alternative solutions. One includes a redefinition of mediation to delete any requirement of impartiality. Another approach is to narrow the definition of mediation so that traditional mediation maintains the requirement of mediator impartiality and the mediator would serve in a purely facilitative manner. A second category of mediation would be deemed a “mediated settlement conference,” in which the neutral would not have to remain impartial and could ensure informed decisionmaking, a balanced process, and ultimately a fair outcome. A third approach is to create a hierarchy of values in which one ethical value trumps all others. Should the paramount value be party self-determination? Should it be confidentiality or impartiality? Whatever it is, the paramount ethical value prevails depending on the parties and subject matter and still allows mediation to continue as a flexible process.

Now, what does all of this have to do with ODR? Perhaps nothing where an automated system is used. But what about the mediator who works individually with the parties online? The digital trail of communication by and between the mediator and parties can serve as evidence of inappropriate mediator conduct, at least in terms of impartiality and fairness. Will this make it more difficult for an online mediator to remain ethical? Is this another reason to develop separate online standards of conduct for ODR?

I hope some of you will share your thoughts.

Susan Exon

Professor of Law

susan202ca
Member
Posts: 6
Post Re: Impartiality
on: October 27, 2009, 16:41

OK, now that I have pasted in my original message, I want to comment to Colin’s discussion of what he does with eBay. Perhaps we should consider substituting a mediator requirement to serving in a balanced capacity rather than an impartial capacity. Robert Benjamin has suggested that mediators should be balanced. Would this help create a more legitimate process?

Susan Exon

Professor of Law

kkovach
Member
Posts: 4
Post Re: Impartiality
on: October 28, 2009, 09:00

Balanced ? does that mean not assisting the parties.. this is where I am having difficulty in both face to face – and now online non-adjudicartory dispute resolution… If an obligation to assure a fair process (whatever that means) exists, then does the neutral provide assistance to a party ? If so, not only is there a loss of neutrality — or for that matter impartiality — but essentially the netural becomes an advocate for one party — to me, that violates the very essence of hiring a neutral third party — which is the phrase used in much of the literature….. I was also particularly struck with the thesis of Mann in the International Journal of Law and Information Technology on the need to even out “uneven bargaining conditions” ( and how some of the difficulty can be accomplished online) — Despite the premise that courts provide fairness – we all know that settlement negotiations are quite often conducted far from an even playing field.
And to add another concern, if the netural assists a party – in their presentation, with information, etc., what potential liability has he opened himself to ?

Esther
Member
Posts: 7
Post Re: Impartiality
on: October 28, 2009, 17:34

Hi, all -

I totally agree with you,

Equity, fairness -in the sense of ensuring equal opportunites to the parties when they are unbalance- sometimes demand preferential treatment … but when this treatment is by reason of an previous stablished objective criteria (such as, for example, been a consumer in a conflict B2C) even though the criteria could be questioned or controversial, neither impartiality, nor neutrality suffer.

As Colin noted in the forum ODR standards of practice, “There’s a thin line between “standards” and “ethics”, and probably so interrelated that we can not analize and understand ones without the others… so, maybe the concepts that we are trying to describe and delimitate there can also help here… and reverse side. There, we are dealing, among other things, with the concept of neutrality, and seems, so far, that there is a perception of neutrality as implying that the practitioner should not be an advocate for either party, but an advocate of fair process (I invite you to see Franks’s clarifying insigh, from an Ombudsman perspective); and that this requirement is related to the fact that de mediator should not impose any criteria, decision or solution close to his own convictions.

Just suggestions …

Esther

senior lecturer of civil law at the Universitat Oberta de Catalunya (UOC), Barcelona, Spain.

noamebner
Member
Posts: 7
Post Re: Impartiality
on: October 28, 2009, 18:23

Hi all –
I’m trying to understand where this very interesting discussion of the balanced/fair/impartial/neutral conundrum we as a field have tied ourselves up in has special implications when discussing ODR.

Is it only because, for the first time, we now have a paper trail (or an ‘e-paper trail’) connecting a mediator’s words to a party’s response and actions? If this is the connection – is this important for evidentiary reasons (’Watch out mediators! The neutrality watchdog is going to sniff you down!’) or for reflective purposes(’Huh – I meant to be impartial, but I guess I didn’t come off all that impartial, did I? Note to myself: No more calling parties ‘You jerk!’).

Both of these seem worthwhile topics, to some extent (my own interest is in the second, I’ve learned some fascinating things about my own mediation habits and tendencies by reading through online mediations after-the-fact). But – might there be other connections between ODR and impartiality that I’m missing, other than the paper trail?

Assistant Professor and Online Program Chair

Werner Institute for Negotiation and Dispute Resolution
Creighton University School of Law

Pat
Member
Posts: 2
Post Re: Impartiality
on: October 29, 2009, 16:58

hello everybody!! I think I agree with all of you to a certain extent. Now, if we go deeply into ourselves, AS HUMAN MEDIATORS, neutrality is difficult to achieve. Is it possible to be really neutral? I think it is very difficult to achieve neutrality in a “face to face mediation”. Why? because we are human beings and even though our task is to be assisting the parties, we have our thoughts and feelings. But remember we are not there to solve the problem brought to mediation, we are there to create a new codification to the comunication OR THE MISCOMUNICATION between the parties. So if neutrality is not natural to our own characteristics, why should we use it obligatorily? Isn´t neutrality another technic? Why don´t we try using neutrality in the search of fairness.
And what is fairness to the parties? Fairness is to give each of the parties what seems reasonable (from their own standards or points of views). This is a way to achieve the win-win solution to the case, using neutrality to achieve fairness.
Every mediator has their own standard of neutrality and compromise with the parties, but fairness is something quite different. SINCE IT IS A PARAMETER OUTSIDE OURSELVES, it is on the parties and we can work or contribute to achieve what seems to be fair to the parties. How? by means of language. Remember language creates conflict and reality, then mediators may break the conflict to pieces and co-construct a new reality (through language)toghether with parties.
This is my humble point of view.
Pat

Attorney at law, Sworn translator, Mediator

susan202ca
Member
Posts: 6
Post Re: Impartiality
on: October 30, 2009, 14:09

Hi Everyone,

Sorry for the delay in responding back to Kim’s question about balance. I had referenced some work by Robert Benjamin. He acknowledges that a mediator cannot be impartial because he or she actually becomes part of the system. He advocates for mediators to be “balanced” in their communications with the parties to protect everyone (and hence I believe the system) rather than protect just one person. This, I think, plays heavily into the notion of fairness. If the mediator is able to balance the communication channels so that everyone has a chance to be heard — really heard — and confirmed, then they can make better informed decisions. For example, a mediator can seek to temper the bully party and provide a safe environment for the weaker party to speak out. Under this scenario, the mediator would not be impartial, but would be balancing the communication between the parties.

So this can be a really important aspect of ODR because the written lines of communication offer the reflective environment for the mediator to study and improve his or her skills, both during the ODR and afterwards, especially in providing the time to choose appropriate language to use with the parties. As a mediator, I would be afraid of the use of the written word to come after me. Plus, confidentiality plays into those situations unless specifically exempt for malpractice situations.

I realize this is the last day for cyberweek. Please take a few moments to make some final comments. I have enjoyed participating with everyone and thank everyone for your valuable input. I wish there was a way to keep this discussion going.

Many thanks to all of you for providing enlightening information,

Susan Exon

Professor of Law

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