Invested, Not Neutral

Mediators are colloquially called “neutrals.”

We don’t advocate for a party or legal theory. We have no conflicts. In that narrow sense, yes, we’re neutral.

But “neutral” can imply passivity. Some mediators do act as detached observers – facilitating discussions, staying out of the fray, letting the parties find their way. They act as neutral sounding boards, there to help communication, then neutrally stepping back when the parties can’t find their own resolution solution.

“Neutral” can also imply evaluative. Reviewing the case like a judge, logically, dispassionately deciding who has the best of it, and offering firm opinion.

As an advocate, those types of “neutrals” weren’t my favorite. I appreciated good communication. I wanted to know the weaknesses in my case. But I wanted a mediator who dug  in – someone who found solutions and showed my client a path forward without litigation. Someone who let my client know that they were in good hands if the case went to trial, but who opened my client to discussions regarding the practical realities of litigation. Someone who created a safe space to discuss risk without my client losing face.

I try to be the mediator I wanted.

I make sure all parties feel heard. I facilitate and guide discussions. But I also make it clear from the outset that I believe in the mediation process, and I’m there to zealously advocate for resolution.

I’ll propose solutions that both parties hate. I’ll float impractical ideas. I’ll ask uncomfortable questions. I’ll take the heart from your client if it helps them redirect their anger away from the other side. My goal: create that space where you can show your client that you’re interested in their long-term future, not just this particular matter.

I advocate to contain the past, and focus on the future.

I also tell parties to take my evaluation (or any evaluation) with a grain of salt. If you’ve practiced long enough, you’ve had cases you should have won – but lost. And cases you know you should have lost – but won. Rough justice is what our system produces when a judge or jury decides your matter. If we’re lucky.

And if the matter doesn’t resolve on day one, I don’t disappear. Follow-up continues as the case progresses. You never know when a shift in circumstances might reopen negotiations.

The best mediators I worked with weren’t neutral – they were invested.

I bring that same investment to my mediation practice.

Coming Up Next: We’ve wrapped up the foundation topics. Next week, we’ll move to what can be done before mediation to set yourself up for success.

Until then,

Monday x Morello Mediation.

None of this is legal advice. Your mileage may vary.