Toward a New Discourse for

Mediation: A Critique of Neutrality

Janet Rifkin, Jonathan Milkn, Sara Cobh

This article explores narrative (stor^'Celling) as an alternative discourse

for the practice of mediation. Through the case analysis of a mediation
session we show that neutrality, as it is often understood, leads to^ prob-
lems for mediators in constructing a^eements. We suggest that hy focus-
ing on the storytelling process, mediators will have a new set of resources
to enhance the actual interactions that take place in the mediation set-
ting. Unlike most mediation research, this article is based on the empirical
examination of actual practices.

Mediation has emerged as a central practice in the field of conflict resolu-

tion. Although much debate has been generated about its role and function,
little discussion critically examines the discourse of neutrality that is fun-
damental to the general rhetoric of conflict resolution. In mediation prac-
tices, neutrality is understood and invoked as a stronghold against bias. It
is interesting, yet baffling, that although neutrality is so central to the
rhetoric of mediation practice, there has been little research on this topic.
Practitioners, disputants, and scholars have all been intrigued by the role
of the "neutral third party" in the process of agreement construction within
mediation. Yet, almost no empirical investigation has been conducted to
guide practitioners on how neutrality can be "practiced" for the facilitation
of agreements. This lack is partially explained by the ideology of mediation
itself which raises confidentiality to such heights that empirical analysis
has been discouraged. More fundamentally, however, this absence is due to
the fact that neutrality in mediation functions much like a folk concept,
that is, there are tacit understandings of what it means and how it works
in practice. This folk concept has given rise to a rhetoric: a folklore of
neutrality that informs how mediators discuss and understand neutrality as
practitioners (Cobb and Rifkin, forthcoming).'

Note: Tbis article is part of a research project entitled "The Social Construction of
Neutrality" supported by the Fund for Research on Dispute Resolution.

MEDIATION QUASrERLI', vol. 9, no 2, Winier 1991 ©Jossey-Bass Inc.. Pubhshtrs 151

152 Rifkin, Millen, Cohh

Tbis folklore of neutrality attracts many would-be practitioners to tbe

practice of mediation because they claim to "naturally" have tbe qualities of
a neutral, and also attracts other people who want to acquire and leam
sucb qualities. But, in fact, this folklore has served to mystify rather than
clarify the discussion about how neutrality works in practice. Because
neutrality is often understood as a set of internal characteristics of media-
tors that serve to guide a set of practices, mediators themselves have a very
limited vocabulary to explain how neutrality functions. Furthermore, media-
tors are often stumped in their mediation practices and have no framework
within which to explain or resolve the complexities that arise.
In this article we seek to explain, by reference to a case study, why
neutrality as it is currently defined presents dilemmas for practicing media-
tors. Because neutrality has been understood as a quality a mediator can
attain, it has been an especially difficult concept to systematically analyze.
Thus, altbough most practitioners in the field of mediation can articulate
the importance of neutrality, tbey can cite little research or theory to sup-
port their position. In other words, mediators are very adept at describing
their practice in terms of neutrality, but they are much less able to theoret-
ically or empirically account for it.
In mediation, neutrality has often been treated both as a means to an
end, and as an end in itself As a means, it is seen as the necessary step
toward problem resolution; as an end, it is viewed as the necessary quality
that the mediator must possess to ensure a fair and jusr process. This
conflation underlies the dilemma that mediators face when they are asked
to systematically explicate their practices. It also further confounds these
practices as they struggle both to "be" neutral (as a means) and to "practice"
neutrality (as an end) simultaneously.

Discourse of Neutrality as tbe Foundation

of Mediation
Drawing from the mediation literature and from our research data, we sug-
gest that neutrality is traditionally understood as incorporating two qualities
thar a mediator ought to be able to employ. The first is impartiality. Most
mediators equate neutrality with impartiality, which they explain as the
ability to interact in tbe absence of feelings, values, or agendas in them-
selves (Davis, 1986, p. 21). Impartiality (a concept also embraced by many
systemic family therapists) refers to the ability of the mediator (interven-
tionist) to maintain an unbiased relationship with the disputants. In other
words, the mediator should handle the case without favoring or supporting
one party for the sake of the group. Impartiality demands an unbiased
approach to mediating.
The second quality of neutrality is what we refer to as equidistance.
Equidistance identifies the ability of tbe mediator to assist the disputants
Critique of Neutrality J53

in expressing their "side" of the case (Odom, 1986). To ensure that infor-
mation is disclosed, the mediator must sometimes temporarily align herself
or himself with individual parties as they elaborate their positions. Thus
the concept of equidistance refers to tbose practices by which mediators
support or encourage the disclosure of the disputants. Equidistance works
to the extent that the mediator can assist eacb person equally. In contrast
to impartiality, where neutrality is understood as the ability to suspend
judgment, equidistance is the active process by which partiality is used to
create symmetry (Kolb, 1985).
Impartiality and equidistance do not stand as competing definitions of
neutrality. Rather, they represent two different aspects of neutrality that
have surfaced in tbe realm of mediation. In tbis discourse (that is, the way
in which neutrality is understood and described in mediation) both impar-
tiality and equidistance are necessary. Yet tbey are obviously contradictory
by definition. The next section offers a model, derived from our research,
that illustrates the contradiction and its implications.

Paradox of Neutrality in Practice

The discursive scheme described above leads to situations in mediation
where their own understanding of neutrality creates serious dilemmas for
practitioners. When impartiality and equidistance appear in the same ses-
sion, whicb in many cases is inevitable, a paradoxical situation may emerge
that offers no guidelines for the mediator about how to proceed: each
aspect of neutrality leads to different interventions with no theoretical or
practical basis by which to choose between them.
The notion of paradox (or strange loop) is borrowed from the research
associated with the Coordinated Management of Meaning, a theory of
communication (see Cronen, Johnson, and Lannamann, 1982; Cronen,
Chen, and Pearce, 1990). The paradox of neutrality, as are all paradoxes of
this nature, is based on an interactive sequence consisting of contradic-
tions. The sequence consists of four steps, eacb one logically leading to the
next, where the fourth step returns directly back to the first step (see
Figure 1).
Paradoxes are recursive, self-perpetuating loops of interaction that con-
tribute to tbe establishment and maintenance of contradictory positions.
They are "real" only to the extent that the context in which they occur
constructs them as logical or legitimate. For example, in the present dis-
cussion it only makes sense to describe the paradox of neutrality in the
context of the practice of mediation. This is because other forms of dispute
resolution are not guided by the discourse of neutrality and therefore
require different types of practices. Further, the paradox is not an inevitable
sequence: it is constructed as a logical interactive pattern only in the
context of the opposing demands of impartiality and equidistance.
15j_ Rijkin, Millen, Cohh

Figure 1. The Structure of an Interactive Paradox

Context of interaction

stage 1 _ =\= _ stage 3

stage 2 =\= stage 4

Note: The bordering bracket is read "in the context of; the slashed equals signs, =\", are read
"contradicts"; the arrows are read "leads to."

The paradox of neutrality typically begins in the opening stages of the

mediation session when the mediators introduce themselves and describe
the process and structure of the forum. At this point the mediators usually
identify themselves as "neutrals." The use of the neutral concept here
usually refers to impartiality as described above. Tbe mediators make it
clear that they are present simply to listen and not to influence the dispu-
tants' explication of the case. This practice logically leads to a situation in
which the disputants are invited to describe their view of the conflict.
With both (all) parties having an equal opportunity to speak,^ a formal
relationship is established in which the mediators are present to serve the
dispute without imposing personal beliefs. Tbis occurs during the second
stage of the paradox. Next, after the opening public meeting, the mediators
often take a private caucus where they determine what areas of the case
ought to be pursued and how to continue the session. They also decide if
they should hold private sessions with the disputants, and in what order.
During the private sessions tbe third step of the paradox is reached. As the
disputants begin to elaborate their positions, the mediators must facilitate
disclosure to attain the information they judge to be significant (Davis,
1986, p. 23). In supporting and directing this disclosure, the mediators are
now practicing equidistance, a practice that stands in contradiction to the
practice of impartiality.
The fourth, and pivotal, step in the sequence emerges when a disputant
understands the practice of equidistance as alignment, an indicator of a
more personal, supportive relationship. This understanding sometimes pre-
sents itself in the form of an explicit request for support of the disputant's
position. When such "supposed alliances" become evident to the mediators,
they are pressured (by the definition of impartiality) to deny personal val-
idation or judgment. That is, they find it necessary to reassert their impar-
Critique of Neutrality j55

tial stance, thereby completing the cycle of the paradox and forming an
interactive loop.
Movement from one stage in the paradox to the next is not based on a
causal mechanism. Rather, the context of mediation itself makes the move
a logical one at each step. It is only when the overall system is appreciated
that the contradictions surface. Note how once the paradox has been
enacted, each step stands as contradictory to one other step (see Figure 2).
In this sense the facilitation of disclosure contradicts the denial of alliance
because the disputants receive mixed messages that confuse their relation-
ship with the mediators. On the one hand, the mediators encourage certain
aspects of disclosure, suggesting an allied, supportive relationship; yet on
the other hand, the mediators present unbiased persons, suggesting an
unallied, formal relationship.
Thus the mediators are engaged in a process of sending contradictory
messages to the disputants while simultaneously providing themselves with
no clear basis for handling the problems (described in the next section)
that can arise from such a scenario.
Even when a case reaches agreement, the mediators struggle with this
paradox because they often find it difficult to formulate "neutral" language.
This problem inevitably arises in the agreement stage of the mediation
session because the practice of equidistance has lead the mediators into a
posture of alignment, but the mandates of impartiality require that they
write a balanced and unaligned agreement.

Figure 2. The Structure of the Paradox of Neutrality in Mediation

Mediation as a form of dispute resolution

impartiality =\= equidistance

formal ^ supportive
relationship =\= relationstii p

Note: The bordering bracket is read "in the context oP; the slashed equals signs, A ^ . are read
"contradicts"; the arrows are read "leads to."
 156 Riflein, Millen. Cobh

Locating the Paradox: A Case Analysis

To illustrate the significance of the paradox and to empirically account for
its appearance, consider a case mediated in the northeast region of the
United States in the late 1980s. The case is one of thirty-two in a data set
originating from a number of mediation centers that has been both video-
taped and transcribed. It is not unique in the fact that it illustrates the
paradox; it was chosen simply because the paradox emerges quite clearly
in both definition and implications for the mediators.
The case involves an alleged assault in a pizza shop. A customer had
phoned in a take-out order which he picked up and brought home. Realiz-
ing he had the wrong pizza (he is a vegetarian and the pizza had meat on
it), he phoned the shop to notify the worker that he would return to get
the correct order. The worker interpreted this call as a threat and told her
boyfriend, who was already in the shop. The boyfriend waited at the door
for the customer and upon his return there was an altercation. Early on in
the progression of the case, the boyfriend admits that he hit the man. Most
of the dispute is centered on the discussion of who was at fault for initiat-
ing the episode. To reach agreement, the customer demands that the boy-
friend pay for the hospital bills he incurred as a result of the incident.
This case, as illustrated in Figure 3, was mediated by two volunteers who
were both white females.^ The customer brought an attorney with him; the
boyfriend appeared alone. The first step in the paradox of neutrality was estab-
lished in this case during the introduction by the mediators (Ml and M2):

Figure 3. The Paradox of Neutrality Illustrated by a Case Analysis

Mediation session: Discussion of fault and blame for

altercation between disputants

M: "we're here as neutrals... M: "it was a very violent

we're not about to judge =\= situation...it was
or take sides..." distracting you mean.'

K7\
D: "when 1 came inside the D: "just put yourself in
pizza shop I..." =\= my place. What would
you do?"

Note; Tbe bordering bracket is read "in the context of; the slashed equals sign, " \ « , is read
"contradicts"; the arrows are read "leads to"; M " tnediator; D •= disputant.
Critique of Neutrality 157

Ml: We're here as two neutral people to help you in any way we can to get
to that point [an agreement] . . .
M2: We're just trained by the community so we're communicators, and
we're not about to judge or take sides or anything like that, so we just
want to hear the story from both of you.

In this brief introductory excerpt the mediators are describing themselves

as impartial. Their claim of impartiality is linked to their invitation to tell
the "story." They claim that they will be neutral in tbe sense that they will
not "judge or take sides" while the disputants describe their case. The
mediators make an implicit distinction between a "side" and a "story,"
associating the former with nonneutrality and the latter with neutrality. Yet,
as we show later, when the mediators "practice" neutrality as equidistance,
they do so by creating the clear impression of taking sides—by aligning
themselves with tbe particular speaker.
The impartiality establishes an interaction in which tbe disputants are
asked to simply tell a story. This assists in the maintenance of a nonadver-
sarial context. Tbe mediators initially set themselves up as facilitators of the
storytelling process, a process which tbey explain is driven by their impar-
tiality. But as the mediators use the tactical interventions associated with the
practices of equidistance (turn taking, caucusing, and private sessions), the
inevitable result is tbat people will talk of their "side" and mediators engage
in "side taking." Tbis results in the usual course of a mediation session and
begins as speakers list, in a straightforward manner, chronological events as
they pertain to the case. The following is a brief excerpt from the customer's
(C) account:

C: I'm carrying the pizza in both hands, and my car keys in my band, and
all of a sudden be started pushing the pizza back. 1 said. What do you
want? Then he raised his band.

Following the customer, the boyfriend (B) has a chance to tell his story.
This excerpt again shows the same pattern of event listing:

B: And when she [his girlfriend] hung up the phone, she was nervous and
she goes, this man said be was coming down here, and he was going to
stick the pizza down my tbroat.

Once both disputants have each had an opportunity to tell their story,
the mediators call a private caucus where tbey begin to discuss how they
will next proceed. It is often at this point that stories are transformed into
sides, as mediators strategize who to see first and what to ask. The con-
sequence of the mediators' facilitation of sides rather tban stories is tbe
reconstitution of tbe adversarial context tbat tbe mediators disavow as tbey
158 Rifhin, Millen, Cohh

proclaim themselves to be impartial. For example, in this case, they decide

to see the customer first and try to develop his side in order to find out
what role the police played in the incident.
In the private session with the customer, the mediators begin to practice
equidistance as a way to generate information on topics they deem impor-
tant. To do so they must momentarily take the side of the disputant and
support his account. For example, consider the customer's description of
one aspect of the incident and the mediator's response:

C: You know he throw that pizza on my face—he could at least talk to me,
ask me what 1 want.''
M2: It's a very fearful situation.

This response is clearly supportive of the customer's position. By aligning

herself with the customer, the mediator establishes a relationship of trust
in which the disputant is encouraged to elaborate his story. This practice
of equidistance is productive until the customer's lawyer (L), and then the
customer himself, explicitly request the opinion of the mediator, at which
point the mediator experiences the dual demands of impartiality and equi-
distance:

C: You know, I had a pizza and somebody hit me with it.

M2: Well, not only that, but it was a very violent situation.
C: You're going to talk with people and see your hand [which had been
bruised in the altercation], ugly. 1 mean they couldn't even sit down with
you. You know 1 couldn't even increase my business.
M2: It was distracting, you mean.
C: I couldn't increase my business, in other words, with my hand. 1 couldn't
even use my hand. I let them write for me. I signed with the left hand.
M2: Oh, 1 see.
C: You know, I suffered, 1 couldn't even see the look on my family.
L: What do you think? What would you do?
M2: Fortunately, that's not why we're here.
C: That's true, but let's look around the normal side, look at what you are.
Just put yourself in my place. What would you do?
M2: I would be frightened, I would be angry.
C: Exactly.
M2: 1 would have a lot of emotions, believe me.

This passage clearly begins with the mediator continuing to be equidistant.

She legitimates the customer's story first by describing the situation as
violent and then by helping him express himself ("It was distracting, you
mean"). Because of the relationship that was established through this prac-
tice, it made logical sense for the customer and his lawyer to seek the
Critique oJ NeuCraliry J59

mediator's explicit opinion. But at this point the mediator is forced back to
the first step of the paradox where she confronts the contradictions she
has established. In this instance, she favors the equidistance posture that
contradicts the position she described for herself in the introduction to
the case.
In the private session with the boyfriend, the mediators express to him
the requests for agreement articulated by the customer. The boyfriend
agrees to the tenns but adds that he is concerned about being harassed in
the future:

B: 1 never had nothing to do with them before, why would I want anything
to do with them in the future? You know? 1 just hope I don't go to [the
customer's place of business] and . . .
M2: He really has, he really has, ah, I don't think any deep-seated animosity
toward you, it was obviously an incredible situation for everybody.

Again, the mediator temporarily aligns herself with the boyfriend and sup-
ports his position, although clearly not to the same extent that she did
with the customer. The result of such a move is the maintenance of equi-
distance—giving each speaker equal opportunity to tell their "side."
But problems arose for the mediators when it came time to actually
write the agreement. Because tbe mediators chose to align themselves with
the customer to the extent that they did, it was difficult for them to rees-
tablish impartiality in the resolution. In trying to word the document, tbe
mediators realized that it was anything but neutral:

Ml: Regarding the incident as the subject of—but that's not very specific. I
don't know how . . .
M2: Agrees to apologize to them—pushing them more for personal injury?
Ml: Agrees to apologize for injuries . . .
M2: This is awful—we're stuck on it.
Ml: Because you want to keep it neutral, right?
M2: Regarding the incident at tbe . . .
Ml: I'm trying to think, Apologize for . . .
M2: Injuries?
Ml: OK, this is unbelievable, I can't believe this.

When it came time to resolve this case, the mediators experienced the
problems that can arise from the paradox of neutrality. Because of contra-
dictory expectations imposed on the mediators due to their understanding
of neutrality, they were left with no guidelines as to how to proceed when
impartiality and equidistance surface in conflicting ways.
In respect to this analysis, we are not arguing that the mediators were
bad or unskilled. Instead, we feel that this case analysis suggests that neu-
160 Rifkin, MiUen, Cobh

trality is a problematic discourse for the practice of mediation because it

has proven to be inadequate to account for the dynamic process involved
in mediation storytelling. In what follows we propose a new discourse for
the practice of mediation. We distinguish storytelling from side taking as
we argue that the former provides mediators with a more coherent frame-
work for practice and makes empirical documentation far more possible.

Storytelling as an Alternative Discourse

The paradox arises in the context of a lack of critical analysis of neutrality
as the fundamental discourse of mediation. Neutrality, when seen as a
means to an end (as described earlier), greatly simplifies the dynamic
process of communication involved. This simplification posits two mutually
opposing sides that must be negotiated. In such a view, communication
interactions are treated as vehicles for message transmission. From this
perspective, mediators function as message carriers trained in communica-
tion skills that are designed to enable the" practice of equidistance and
impartiality as defined in the paradox. As shown in the above analysis,
neutrality, as a means as well as an end, is problematic.
The need to master communication skills, however, should be critically
analyzed. Communication skills are often understood as tactics that enable
smoother interactions based on the mediator's ability to grasp the meaning
of a certain message or behavior. The problem is that such skills focus
more on the individual messages and less on the overall process of inter-
personal communication. Ignoring the process by focusing on such isolated
variables as tum taking and eye contact leads to an unsophisticated account
of communication.
This simplified view of communication locates the nexus for behavior
in the psychologized traits of individuals. Thus, throughout the mediation
case, the mediators must make a (cognitive) choice between practicing
impartiality or practicing equidistance. In these terms, a good mediator is
one who can suppress feelings and still encourage others, remain emotion-
less and still be supportive, and remain objective and still determine the
course of the session. The paradoxical requirements outlined above arise
in the context of communication understood as message transmission.
Such a view requires that mediators focus on the specific "transmissions"
rather than the ongoing interactive nature of the mediation narrative.
Although it is not the case that the paradox will arise in every mediation
forum, it is nonetheless the logical outgrowth of a mediation practice that
views communication as the transmission of messages rather than as an
emergent, dynamic process.
We are advocating an alternative understanding of the communication
process that shifts the focus from transmission of messages to the recip-
rocal interaction of storytelling. This alternative, or primary (see Pearce,
Critique of Neutrality 161

1989), view of communication recognizes that communication is the way

in which we experience the social world. It is through communication, the
conjoint telling of stories, that relationships, identities, and institutions are
established. Rather than being concerned with individual intemal states, it
deals with observable practices as they unfold in interactions. Instead of
asking why a certain message was delivered, the primary view is concerned
with how the sending of a message plays a part in the social construction
of reality.
The discourse of storytelling has emerged in the field of communication
as a promising way in which to understand interaction. Story is used to
refer to the structure of account giving. Mishler (1989) identifies two trends
in scholarship dealing with storytelling. The first considers story to be one
of many forms of communication; the second considers story the primary
form of communication. Our work is consistent with the latter group. Fol-
lowing the work of Fisher (1985, 1989), we agree that all human communi-
cation can be understood as story, or narrative. Narrative refers to the way
in which stories cohere together. In the specific context of mediation, we
adapt this discourse to redefine the role of the mediator as managers of the
storytelling process. As storytelling facilitators, mediators can focus on
practices (as opposed to internal traits) to account for their roles.
Our position is that storytelling embodies and explains the fundamental
nature of mediation and that what a successful mediator does is facilitate
the production of a coherent narrative. The swatch to a narrative discourse
(or discourse of storytelling) does not imply that past mediation sessions
have failed. Rather, we argue that the discourse of storytelling will enable
both mediators and scholars to better understand the process of mediation
and escape the paradox of neutrality as well. In other words, the problems
associated with identifying and dealing with disputants' sides are elimi-
nated if the mediators instead focus on the conjoint process of storytelling.
Story facilitation recognizes che mediator as an active participant in the
coconstruction of the narrative. The narrative is greatly influenced by the
way in which the mediation session is structured and by the interventions
made along the way. Decisions such as who to see in a private session,
what types of questions to ask, and when to hold a private caucus are all
seen as influencing the unfolding of the storytelling process. Although the
mediators can attempt to monitor their influence, it must be recognized
that mediators, as do the rest of us, legitimize certain stories over others.
Thus once the "magic" of mediation is critically examined, it must be
understood as a political process that privileges certain speakers or dispu-
tants over others.'
Story facilitation also recognizes that not all people share equal access
to the narrative process. Simply put, certain groups of people face obstacles
that others do not in telling a story. Gender, age, racial, and cultural differ-
ences—all these and more—potentially affect one's ability to construct a
162 Rifkin, Millen, Cohh

story that is recognized by others as coherent. Thus, mediators will neces-

sarily have to adjust thetr interventions to account for the political nature
of narrative Interaction. The point we wish to stress here is that even
though agreements are often reached (as was the case in the session ana-
lyzed above), they sometimes perpetuate the inequalities and conflicts that
underlie the case to begin with.

Conclusion
Mediation is presently guided by a discourse that constructs neutrality as
its essential characteristic. Through exploring its dualistic definition we
have shown both empirically and theoretically how this discourse leads to
problems for mediation practice. Mediators often confront the paradox of
neutrality but are rarely, if ever, provided with the means to escape it.
An alternative discourse, the discourse of storytelling, alleviates the
paradox when it is imposed upon mediation. Storytelling has been used to
describe the way in which people organize their utterances (Anderson,
1990). We have suggested that storytelling be developed as an alternative
frame through which the practice of mediation is understood. By doing so,
mediation becomes an accessible realm for systematic analysis.
In the discourse of storytelling, the end goal of mediation can be redes-
cribed as the construction of agreements in a discourse that empowers
both the disputants and the mediators; that is, allowing agreements to be
constructed in the absence of the conflicting demands of neutrality. The
means for doing is the active facilitation of stories.
The next step, then, is to develop a set of practical guidelines that
would assist mediators, or story facilitators, in the coconstruction of a
narrative that would resolve the conflict between the disputants. One way
of doing so is through the reexamination of mediation cases, asking how
the mediator might have acted differently if trained in the discourse of
storytelling. This goal can only be reached after the first step—recognizing
the inadequacies of neutrality—is taken. This article has been an attempt
at taking that first step.

Notes
1. Much of che theoretical frame that is developed in this article stems from work done with
the support of the Fund for Research on Dispute Resolution. Our research has been con-
ducted over the past two years, focusing on chirry-two mediation cases that have been both
videotaped and transcribed (for further discussion of our research, see Cobb and Rifkin.
forthcoming).
2. Although each disputant is given equal time to speak, our research suggests that the first
speaker's story is more likely lo be adopted by the mediators. We are working with this
hypothesis for an upcoming paper.
3. Most of the sessions we have studied use teams of two mediators. Given thar we view
mediation as a political process, we will need to examine the influences of gender and
Critique oJ Neutrality 163

cultural issues in the mediation forum. As GilUgan (1982) shows, men and women under-
stand relationships in different ways; we want to know to what extent these differences are
evident in transmission.
4. The transcription of this case was done verbatim. It is important to note that based on
the customer's cultural background and heavy accent, we have assumed that English is his
second language.
5. Mediation is often lauded as a "magical" process, ln our interviews with mediators, which
were part of this research study, we found that most mediators share the idea that there is
something about the process that cannot he rationally explained but that it works somehow
to facilitate satisfaction and agreement between conflicting parties. In contrast to this mythol-
ogy shared by many mediators, we argue that both the process and structure of mediation
entail certain characteristics that are assumed to be objective (for example, tum taking). Our
research indicates that the simplest decisions of the mediator (for example, who to see first
in a private session) can have an obvious impact on the case, ln the case analyzed in this
article, the agreement is clearly written tn the story of the customer and not the story of the
boyfriend. At the conclusion of the mediation session, the boyfriend leaves his copy of the
written agreement behind. One could interpret this act as a sign that because he was not
afforded the respect that the customer was, the agreement was not a valuable document to
him. Clearly, this is not the only way to make sense of the fact that the boyfriend left his
agreement behind, but we think it is a nice illustration of how mediation can privilege
certain persons over others.

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164 Rifhin, Millen, Cohh

Janet Rifkin is associate professor in the Department of Legal Studies, University of

Massachusetts at Amherst. She is the author of a number of articles ahout mediation.

Jonathan Miilen is assistant professor in the Department of Communication at Rider

College.

Sara Cobb is a visiting assistant professor in the Department of Communication, State

University of New York at Albany.