The Biased Mediator

By PracticeForte Advisory Affiliate Christian von Baumbach
(this article was first published in E-Mediation Magazine)

Mediators are 100% impartial!

They are not passive observers of a conflict, of course, but actively support all parties equally to express their views and needs and come to solutions that are in their best interest. Most definitions of mediation emphasize the role of the mediator as a neutral or impartial third party. Impartiality is a key principle of mediation.

But is this really true? Probably not, at least not 100%. Biases are a natural, and to some extent unavoidable, part of human nature. Our biases help us to navigate through our daily lives without having to think too much about every action and encounter.

What about our professional lives? Can we leave our biases at the door when we enter the mediation room? Maybe to some extent, but probably not completely. To be honest, even in my professional role as a mediator I am influenced by my biases. My biases keep me from being truly impartial. In most mediations I feel closer to one party than the other or feel that the arguments of one party are more reasonable than the other.

This can be a problem if this influences me in a way where I favour one party more than the other. As the mediator I am responsible for leading the process, and the process naturally has an impact on the outcome. I could, for example, lead the conversation in a way that helps party A at the expense of Party B. I could repeat or visualize some arguments in greater detail while neglecting others. Or the parties simply feel the greater sympathy towards one side. All of this could probably happen unconsciously and therefore would be difficult to avoid.

So, it is very important to be aware of our biases, train our perception and develop skills to stay as impartial as possible. How can we achieve this?

Seeing through cultural lenses

Our perceptions and values are strongly influenced by our surroundings and our peer groups, especially at a young age. Our family members, friends, classmates and others have an impact on how we perceive the world around us and how we judge others. This cultural background shapes our perception and influences our judgement. Most of the time we are not even aware of the cultural lenses that we look through. We believe that our view on the world is real, and therefore opposing, unexpected behaviour must be somehow wrong or mischievous.

But we can train to view the world through different lenses, to look at the world from different angles. This is, of course, what mediators always pursue, but not all mediators take cultural biases into account. To do so, we need to achieve knowledge about cultural dynamics and reflect on our own cultural background, as well as on other cultural aspects. We also need to develop an attitude of respect and interest towards people from other cultural backgrounds. Culture is complex and there is always something new to learn. It also helps to talk to a lot to people from very different social and cultural backgrounds to understand how they perceive the world. Through these theoretical and practical experiences, we gain intercultural competence[1] that helps us to understand and deal with our biases.

One important aspect here is that culture is by no means limited to national culture. Modern cultural theories like the concepts of open culture and multicollectivity by Professor Bolten[2] apply non-binary concepts to culture. Professor Bolten points out that all humans belong not only to one culture, but instead to multiple collectives. Each collective has an influence on us and therefore on our own biases. These concepts may help us to understand our own diverse cultural background as well as that of others. It supports a view that is less black and white and more colourful.

Co-Mediation

Aware of cultural biases, in cross-border family mediation we often work in co-mediation with a team of mediators from different backgrounds that match the background of the parents. The German NGO MiKK[1] has developed the 4B mediation model, in which co-mediator teams with the following characteristics are assigned to each case: 1. Bi-lingual: Parents may speak in their mother tongue as well as in the language of the relationship during the mediation. 2. Bi-cultural: The co-mediator team will reflect the culture of the parents. 3. Bi-professional: One mediator will be of a legal background and the other will be of a psychosocial (psychological or pedagogical) background. 4. Bi-gender: The co-mediator team will reflect the gender of the parents.

Each mediator will have biases and not every mediator can support its respective party equally, but together as a team they can help each other to understand and overcome their biases and support the parties equally. That is why each co-mediation is a wonderful learning experience for the mediators as well.

This mediation model is also effective to counter possible biases that the parties might have against the mediators. Someone from Germany might feel better with a German mediator in the room while someone from India might prefer a mediator from India, even if both mediators are effectively impartial to both parties.

[1] MiKK e.V. International Mediation Centre for Family Conflict and Child Abduction (https://www.mikk-ev.de/en/)

Prejudice vs. generalization

Not all assumptions are wrong. A helpful difference can be made between prejudices and generalizations. Prejudices are preconceived opinions that are not based on reason or actual experience. This is a negative and destructive form of bias. Generalizations on the other hand are realistic assumptions that are based on researched facts or personal experience. Generalizations can help us to understand a situation or people.

Reflecting on our own beliefs, and understanding which are based on facts and experiences and which are a result of prejudices, can be very important.

Body and mind

As biases are largely part of our subconscious. It can be difficult to approach them on a logical, conscious level. However, they will manifest physically through our bodies, gestures and movements. Therefore, mediators should pay attention to their body reactions, their posture, breath and gestures. All these hint at real thoughts, including biases. For example, sometimes I notice that I subconsciously have a greater physical distance to one party or that I physically face more towards one side. This might hint at a subconscious bias. There are two ways to approach this: One is to reflect on this, maybe through supervision. The other is to deliberately correct my position in the room or my body posture. There is a close connection between body and mind and one effects the other. It can help to develop a better understanding for the connection between body and mind, for example through meditation, yoga practice or martial arts. Personally, I have learned a lot from my Aikido practice over the years[1].

[1] Article on Aikido and Mediation: https://baumbachmediation.com/en/aikido-and-mediation/

Conclusion

Every mediator is influenced by his or her biases, often on a subconscious level, and this might impair our impartiality. To avoid that, we need to be aware of our biases, train our perception, and develop skills to stay as impartial as possible. Intercultural competence helps us to understand our own biases and treat others with respect. Co-mediation is a wonderful concept where two mediators with diverse backgrounds work together to overcome their own biases and acknowledge possible biases by the parties. Biases in the form of generalization might be helpful if we stay cautious of prejudices. Lastly, our body is a great indicator for our subconsciousness and helps us to understand and influence our own biases.

Article by PracticeForte Afrfiliate Christian von Baumbach

In conflicts, as in all aspects of human life, there is a close connection between body and mind. A fight is never solely physical or mental, it is always both.

The Japanese martial art of aikido allows us to observe conflicts from an interesting perspective. The fundamental principles are learned and experienced through physical training, but the goal is the transformation and development of the mind.

In this article let us look at some principles of Aikido and think about what we can learn from these for dealing with conflicts in general.

The focus of aikido is not to defeat one’s opponent, but to defeat oneself. Consistent practice enables a person to overcome his or her own weaknesses and to bring body and mind into harmony. This also makes it possible to appear peaceful to the outside world and to approach conflicts confidently and in a respectful manner. Violence should never be requited with more violence. True martial arts represent the path of peace and harmony.

Similarly, mediation is not about winning. It is about self-reflection, mutual understanding and jointly finding a way out of a difficult situation. For the mediation to be successful the parties also need to overcome their own fears. The key to success often lies in themselves, not in their opponent.

KI AND BREATHING

Central to all aikido techniques is ki. Ki signifies the life force that is inherent in every being and it is intimately connected to breathing. The word aikido can be translated as the art or the way (do) of aligning or harmonising (ai) life energy (ki).

Aikido techniques are most effective where the application of force and one’s own intention are not directed against the force and will of the agressors, but rather flow in the same direction. Strikes to the face are not blocked but are guided further in the same direction by skilled evasion, causing the agressors to lose their balance and the aggression to flow into the void.

Similarly, mediation is also about overcoming real or perceived opposites by looking at all the aspects and reconciling them in a creative way. It is possible to forcefully block a verbal attack and to counter it with a brutal “counterblow”. Another option is to gently evade the attack, to understand what lies behind it, and then to look for arguments that do not oppose the “agressor’s” intention, but that in fact even support it. If I look for answers as to where the aggression is coming from and thus offer solutions that do justice to my counterpart as well as to my own needs and interests, if, in other words, our ki is in harmony and in alignment, then the conflict can be elegantly resolved.

ZANSHIN

Zanshin is a Japanese term that can translated as “remaining mind”. The first character “Zan” means to linger or remain and the second character “Shin” means heart and also soul. Zanshin is a physical and mental state of focused attention after a technique or action is performed. It involves staying connected with one’s counterpart and being prepared for surprises. To achieve this, one’s own feelings must be kept under control and the opponent must be taken into consideration and shown respect.

Parallels can be drawn here with active or empathic listening in mediation, where the attention is focused on the mediator to understand and qualify what is being said. It is equally as important not to judge the mediators and to allow them the opportunity to express their feelings honestly. Only in this way is it possible to create a safe space in which the search for consensual solutions can succeed.

POSTURE & POSITIONING

One’s own posture and positioning in relation to the opponent are decisive elements in a fight. Only someone who has stability can act in an effective manner without becoming unbalanced. The distance between the opponents deserves special attention. In Japanese martial arts, the term “Ma-ai” is used to describe the proper distance: far enough away so as to be able to respond to any aggression in time, but close enough to remain in contact with the opponent and to be able to use one’s own techniques most effectively. The ability to sense the opponent’s intention and the appropriate reaction to it are crucial: if my opponent moves away from me, then I follow him. If he comes closer, then I move away. If he is circling around me, I turn to face him. This means that I am following my opponent’s intention, but not in order to admit defeat, but rather in order to maintain my own position and retain my ability to act. Aligning oneself with and towards the opponent is not a sign of weakness but is, on the contrary, a basic prerequisite for protecting oneself.

Being able to sense people’s intentions and react accordingly also belongs to a mediator’s repertoire. Posture and positioning can also be of key importance in mediation. Maintaining an upright posture and standing or sitting in a stable position is beneficial because it facilitates breathing, promotes circulation and gives a better overview of what is happening.

When mediators consciously use their bodies, for example by clearly turning towards the individual interlocutors and adjusting the distance depending on the situation, they are able to enhance the effect of communication techniques. Just as important, in a figurative sense, is to develop a trustful, close relationship on the one hand, and to maintain a professional distance on the other.

MARTIAL ARTS IN VERBAL CONFLICTS AND IN MEDIATION

Akido training instils an awareness of the dynamics and fundamental coherences of conflicts. It shows the importance of inner calm, deep breathing and an upright posture, as well as of concentration and mental and physical flexibility. Practitioners of Aikido are well aware of how painful it is to react to an attack with rigidity and force, and how effective it can be to first sidestep and then react to the attack from a different angle.

The same applies in a verbal conflict. A forceful and aggressive counter-argument can hurt our “opponent’s” feelings, push him into a corner and end up escalating the situation. In such cases, it is often better to first retreat or to avoid the situation. This alleviates the tension and allows for a constructive resolution of the supposed contradictions.