A mediator must prevent any perception of bias on her part. The response when faced with a party whose good faith in negotiating is questionable illustrates this imperative.
The need to preserve her neutrality does not bar the mediator from questioning a party about his good faith because such action seeks to protect the integrity of the mediation process, which entails no taking of sides. The mediator, however, also must keep in mind that a party may well perceive her to have turned against him in questioning his good faith. In such a situation, she has lost her standing as a neutral and thwarted the process she has sought to protect.
The mediator should respond in one of the following ways when confronted with this situation. First, if she believes the party is incapable of negotiating in good faith, then she should terminate the mediation. Second, if the mediator believes the party will negotiate in good faith, but also considers her neutrality to have become irreparably compromised, then she should withdraw from the process. Finally, if she believes that she can be neutral going forward, then she should secure informed consent to her continued participation. Because the last of these responses brings into play other ongoing duties of the mediator, I will explore it in a future post.