It can be challenging for FDR professionals to maintain the perception of neutrality in when working in dual functions as mediator-arbitrators and parenting coordinators.
There is an inherent tension in the various roles encompassed in the process. Mediators often engage in tactics that might be seen to show their assessment of the situation.
Even where parties have consented to a form of evaluation in the mediation phase, hearing something that sounds like a judgement can impair that professional’s perceived neutrality thereafter. If the mediator-arbitrator goes further and makes an interim ruling on a motion during the mediation phase, their neutrality is further jeopardized.
For parenting coordinators, the challenge is even greater as their role is by definition one of fluid movement from one stage (eg/ mediation) to another (decision-making) continuously.
It therefore requires a high degree of self-awareness and skill to maintain the confidence of both parties throughout such hybrid processes.
Even in pure arbitration, there are opportunities for clients to doubt their arbitrator’s neutrality. One of the most obvious results from the screening requirement. Family arbitrators are required to receive sensitive and confidential information from each party relating to suitability for the process and safety that judges or civil arbitrators would never receive. Arbitrators must be comfortable normalizing the receipt of this information for pure procedural assessment purposes, and be clear themselves that the screening step does not compromise their neutrality as an adjudicator.
How do mediator-arbitrators, parenting coordinators and arbitrators maintain their neutrality in the face of such complexity?
We explore these issues in-depth in our 40-hour family arbitration training. Here are a few tips:
- communicate with both parties together (either in person or via the cc. or bcc. function in email) unless it is made clear to all that the communication is part of a caucus or part of your ongoing screening responsibility.
- send the same number of emails to each party in your caucusing/PC exchanges
- spend the same amount of time with each party in private meetings such as ongoing screening and caucuses.
- build in on-going, written, procedural feedback opportunities from the parties in on-going mediation-arbitration or PC processes, to allow parties the opportunity to share any concerns they have. This not only protects them and you from later allegations of unfairness, it also often results in a better process with greater party buy-in.
- have private meetings (caucuses) or exchange private emails with parties once an arbitration phase of mediation-arbitration or PC has begun.
- rely on information obtained during the mediation phase of any process without repeating it in writing to the parties and giving them an opportunity to respond in writing
- use any information provided for the purpose of screening as evidence in any adjudicative phase.