Saturday, January 2, 2010
Does Your Mediator Follow The Prime Directive?
Star Trek watchers may recall that whenever Captain Kirk, Spock, Bones and the anonymous crew member (who invariably ends up getting killed or deciding to live with the alien civilization) beamed down to investigate activity on a new planet, they were required to adhere to the Prime Directive.
The Prime Directive, Starfleet’s General Order #1, is the most prominent guiding principle of the Federation. The Prime Directive dictates that there can be no interference with the internal development of pre-warp civilizations. It includes any “purposeful efforts to improve or change in any way the natural course of such a society, even if that change is well-intentioned and kept completely secret.” This includes not intervening even though having done so could have prevented injury or death.
The above definition is highly analogous to the proper role of the mediator. It is important to make sure that you choose a mediator that follows the Prime Directive to ensure fairness to all parties. Sometimes, this can be difficult when the mediator sees where the parties have failed to take certain steps that would materially improve their case. At a recent seminar on mediation tactics and pitfalls, one of the attorney participants related that at a recent mediation, the mediator (no doubt well-intentioned) introduced a hitherto unconsidered legal authority in a joint session. Doing so materially altered the “natural course” of the case to the detriment of his client. The mediator’s action violated the Prime Directive and went beyond her role to facilitate communication.
The Prime Directive does not preclude the mediator from providing analytical assistance to the parties by questioning assumptions and considering the strengths and weaknesses of their case, otherwise known as “reality testing.” Indeed, such assistance is often critical and one of the most oft cited reasons for selecting a particular mediator. However, a mediator who gives either side advice on how to improve their case by introducing concepts or strategies that they would not otherwise have considered can distort the process. For example, the parties are too far apart for a first round of mediation to settle the case and the mediator suggests that the plaintiff obtain an MRI or the defendant get a a defense medical examination. Such advice may no doubt be well-intentioned but it potentially creates a disadvantage to the other side that but for the mediator’s involvement, would not have occurred. Even “reality testing” can inadvertently skew the result if it is done in a joint session and a “weakness” raised by the mediator had never occurred to the other side.