Neutral but Human: The Daily Struggle of Mediators with their Own Biases
Mary Lou Bryant Frank, Ph.D.
Neutrality is a hallmark of the mediation process. In the field of conflict resolution, mediators are effective because they are not aligned with either side in a dispute. The desirability of mediation as compared to a courtroom decision is that both sides can work together with the help of a disinterested, neutral party to come up with a decision that benefits both sides. Individuals seeking help from conflict trust the mediator’s objectivity and thus the fairness of the process. Much hinges on the neutrality that embodies the promise of mediation. But it is important to remember that these “neutral” third parties are human.
Much has been written about the different forms of bias that are a normal part of human understanding (Athens, 2021, Fines, 2024, Hausner, 2018, and Oster, 2025). Daniel Kahneman (2011) was one of the first to apply these heuristics to decision making in his seminal book on “Thinking, fast and slow.” His belief was that we make better informed decisions when we are reflective and thoughtful (thinking slow) is contrasted with the fast, intuitive thinking when we make decisions without considering all of the dynamics in a problem and instead base our decisions on automatic, unconscious, error prone biases. Because of Kahneman’s efforts, cognitive bias has become an area of interest for mediators and attorneys as well as cornerstone of Cognitive Psychology. Recognizing the “rules” we use to help us solve problems or issues quickly allows us insight into how we lose our ability to be neutral.
The following examples show the kinds of human heuristics underlying cognitive biases that impact our ability to be neutral.
Confirmation bias is when we hear a person offer a perspective on their conflict that immediately confirms an impression we had. If we only listen longer, we might realize that while this information “confirmed” our initial impression, there is another side we may not have considered. Often we become so convinced our impression is correct, we even ignore contradictory information that is presented in a mediation. The initial impression might be based on our own history, the backstory of the conflict itself, how a mediation started, or any number of events that causes individuals to categorize or label another person. As mediators, it is important to remember that once we have that label in mind, it is easy to “find” information that confirms it. We need to actively hear both sides to maintain our neutrality.
The Dunning-Kruger effect provides another way bias can enter into our decisions. People with low ability tend to consistently overestimate their competence and people with high ability underestimate their abilities. This underlies the premise of the “imposter phenomenon” where individuals who are competent and successful are more likely to question their capabilities. Mediating parties who are overconfident might want to believe they have the strongest side in a conflict. However, it has been shown that those who are humbler who underestimate their cases, may in fact be the most competent and have the strongest position. Mediators and the parties in conflict can get drawn into unconsciously giving support to a what in essence is a position just because it comes across with more bluster and bravado.
Labeling or Overgeneralization bias is where individuals in a mediation label what has happened to them or who the other side might be to a single negative label. For example, individuals from one part of the conflict may have a history of having lost previous cases against the other side and that history impacts them as well as the side that has a history of successes at trial. However, if we think about it, that doesn’t mean that this pattern is true in the current case. No one is a “winner” or a “loser” just because that was in their past experience. Labeling is easy and can be used by either side or the mediator to “justify” making a decision based on the past. It is “human” to quickly overgeneralize from past experiences, but it doesn’t allow both sides a fair opportunity to make their case in the current conflict.
Negativity bias reflects a normal human process of focusing on the negative or painful aspects of a conflict at the expense of the positive. We all tend to recall what has been painful over what was pleasant in our lives. This tendency can enter the mediation space when we give more attention to the negative and forget to balance what has happened with the broader picture that includes the positive elements of a situation. In mediation, this can be countered by any member putting the negative in context or by getting each side to look at things from the other position. This bias can be found in either side of dispute as well as from the mediator.
Optimism bias is equally a roadblock. Being overconfident can create a condition where either side can overlook the weaknesses of their case and the strengths of the other side. For those in conflict, this can lead to being underprepared and not able to have an honest perspective of their positions. For a mediator who is overly positive about an outcome, they can’t fully listen to either side impartially because there is an unrealistic expectation of a positive settlement before one is negotiated. Slow, logical thinking, combined with the use of BATNA’s (Best Alternative to a Negotiated Agreement) and WATNAS (Worst Alternative to a Negotiated Agreement) enable mediators to help and identify of the strengths and weaknesses involved in all sides. Awareness paves the way for deeper dialogue and understanding.
In addition to the cognitive biases, emotional roadblocks are inherent in us being human. The issues around feelings expressed by those in mediation and the feelings we have as mediators continue to cause challenges in the mediation process. Emotions are key to resolving conflicts. However, the difficulty mediators have in addressing emotions in mediation has been well documented (Kalter, Bollen, Euwema, & Verbeke, 2021). When mediators do not acknowledge the feelings of the parties they are missing key information that impacts the mediation. However, when mediators, due to their own beliefs about emotionality, label the feelings as showing weakness, they lose their neutrality. Biases toward rationality and logic impact mediator neutrality. The problem-solving orientation of most mediators today does not focus on emotions but rather on managing feelings to resolve a conflict. What is not discussed is the impact this has on the emotions that are evident and an integral part of the conflict and ultimately, the key to its resolution. Maintaining an openness to the emotions as well as the facts of the case, ensures the mediator will facilitate both sides hearing each other and develop an understanding of the problem from all perspectives. Only by honoring the feelings that underlie the conflict can mediators and those in conflict begin working through the issues toward settlement.
Other biases provide even more opportunities to see how we as humans find ways to misunderstand, label, react, imbalance, and even misdirect elements of a mediation causing us to lose our neutrality. It would take a book, not an article, to review all of the heuristics and issues that can intervene to stymie the conflict resolution process. It is much easier to get into conflict and maintain the disagreement than it is to resolve it. However, one variable seemed to help overcome and address these deficits, compassion. Individuals who, despite the biases that kept them from being neutral, were able to show respect, understanding, and truly listen to the people in the conflict, were effective. Compassion helped those in conflict to feel more connected, have respect toward the other side, have deeper understanding of the issues and perspectives, and foster an awareness of the pain the other side is experiencing (Frank, 2023). Ensuring mediators are trained in compassion helps individuals in resolving conflicts. Moreover, compassion increases understanding of the suffering involved in conflicts and helps them to get beyond self-interests which only mire us in cognitive biases.
Daniel Kahneman’s work focused on how when we are reflective and react thoughtfully and slowly, we will make the best decisions. In mediation, recognizing the many forms that cognitive and other biases may take, certainly a slow, deliberative process makes sense. Abramson (2021) indicates that to do this, individuals only need to be willing to grow and be open to understanding how our assumptions and automatic reactions keep us from being fully human. We need to recognize the gravity and importance of each mediation and give it the patience it deserves. Equally important is what we hold in our hearts when we begin a mediation. Being human means we will make mistakes, but if we maintain a attitude of compassion toward all of those in the room, we have an opportunity to stay neutral.
References
Abramson (2021). Cultivating empathy. Monitor on Psychology, 5298), 44-52.
Athens, L. (July 2021). Top ten cognitive biases and distortions in mediation. Mediate.com.
https://mediate.com/top-ten-cognitive-biases-and-distortions-in-mediation/
Fines, BGT. (2024). Biases and mediation practice. Journal of the American Academy of Matrimonial Lawyers, 37, 117-146.
Frank, M.L. (2023). The mind of a peacemaker: The psychology of mediation 3rd edition. Kendall Hunt.
Hausner, S. F. (August 2018). Cognitive biases in mediation. Advocate. https://www.advocatemagazine.com/images/issues/2018/08-august/reprints/Feldman_Hausner_article.pdf
Kahneman, D. (2011). Thinking, fast and slow. Farrar, Straus and Giroux.
Oster, E. (September 2025). Recognizing and embracing cognitive bias in mediation. Advocate. https://www.advocatemagazine.com/images/issues/2025/09-september/reprints/Oster-Sept25-article-Advocate-magazine.pdf