Ed Ahrens, Jr., Esq. writes monthly thought provoking Editorials on mediation. These views are Ed's and do not necessarily reflect those of Florida Mediation Group.

No, this is not a mystery thriller. My observations spring from the common but erroneous perception that a good mediator has no biases.

Any mediator who says he or she has no biases or partialities is a misguided zombie. In fact, such a mediator does not exist. The distinction may be semantic, but the biases or prejudices that the courts, attorneys and parties are or should be concerned with are defined in Rule 10.070:

Impartiality means freedom from favoritism or
bias in word, action, and appearance.

In other words, what’s in your head is your personal business, whether you are a judge, mediator, attorney, or anyone else. As a mediator (or judge), however, you do not let everything that’s in your head manifest themselves in a mediation proceeding.

Wait a minute, Ahrens, you say, "I want someone who has absolutely no partiality toward…toward…hmm…the other side, of course…hey, weren’t we in the same class at UM?"

You and I know that we all have our emotions, feelings and sympathies, and that those predilections all fall somewhere along the conscious, unconscious and subconscious spectrum.

The transient bias is that bias perceived to have evolved out of the mediator’s premediation legal experience. Few attorneys have spent their careers walking on a fence. Most of us were primarily defense lawyers, plaintiff lawyers, or corporate lawyers. Each of us spent years bombarded by the propaganda prominent in the environment in which we worked.

But something happened to all of us on the way to the forum of mediation. Not only does the intense training program elbow the attorney toward the middle of the road, but, in the course of our mediations, we quickly discover that there are all types of personalities in the ranks of attorneys and adjusters and parties, on both sides. Some are wise, some unwise. Some are skilled, others just learning the ropes. Some have highly focused biases of their own and do not mind trumpeting them, while others take the high road and recognize that we are all there simply to do a job in the best and most responsible manner we can.

In any case, I have found that mediators, regardless of their professional background, not only take pride in their functional impartiality to the parties in a dispute, but actually do develop a deep seated, even handed attitude toward all the participants in a proceeding.

None of this, of course, excuses the mediator from failure to disclose potential conflicts of interest and relationships, as are envisioned by the Rules. Conflicts also may be only perceived, but perception in their case can quickly become reality in the minds of the attorneys, adjusters or parties affected. So it’s important to get them out in the open.

I guess my point is that a history of honesty and integrity—and experience—carry far more importance in the selection of a mediator. To date, I am blessed by having met none at Florida Mediation Group that fails to meet these standards. I’m sure it is true of most mediators.

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