Conflicts In Interest

(from Maine Townsman, May 2007)
By John Alfano and Roger Moody, Maine Association of Mediators


There is a distinct difference between the legally defined “conflicts of interest” in state statutes and in municipally adopted ordinances and policies, and “conflicting interests”. The two are separate and distinct concepts.  When charges of a “conflict of interest” are levied in a municipality, often the concern is based on a “conflict in interest”.  Conflicts of interest are narrowly defined, and arise out of historically long-standing concerns about pecuniary or financial gain wherein a public officer or official might find a financial advantage from the public position they hold.  By contrast, “conflicts in interest” or “conflicting interests” are much more prevalent and often disputes where mediators and facilitators are used to help resolve the conflict. 

Conflicts in interests are disputes between individuals and among parties to a dispute.  The parties have a ‘horse in the race’ that they want to see win.  To address such conflicts, professional mediators and facilitators are available to help the disputing parties find the common ground.  It is not their duty or responsibility to help one party at the expense of the other.  They may suggest ideas to resolve the dispute. But they may not manipulate the situation so that the outcome favors one party at the expense of the others.

Facilitation is the process of conducting a discussion or series of discussions wherein the parties arrive at their own conclusions and agreements.  The facilitator is a professional neutral who assists in maintaining civility among the parties, and offers an even-handed approach which allows issues to be addressed and understandings and solutions to be developed by the disputing parties in a structured process.  By contrast, mediation can be less structured, with the parties meeting together or meeting separately, to address the issues that are blocking them from settlement.  The mediator may offer suggestions to bridge the gaps to an agreement.  In both processes, the disputants work with each other to find their solution to the problems, with much less involvement from a facilitator than from a mediator who may be more active on the issues. 

  Conflicts in interest may occur, for example, between town managers and councilors or selectmen, supervisors and employees, special purpose district members, schools and municipalities, and developers and neighborhoods, and can be successfully addressed through mediation or facilitation by seasoned professionals.

Municipal officials should be aware that there is protection for “neutrality” when they contract for facilitation or mediation services.  For mediation and facilitation professionals, conflict of interest, in the traditional sense, may occur, when the mediator or facilitator has a personal or a professional relationship with the disputing parties or directly may benefit from the result.  Conflicts in interest occur when mediators or facilitators have an interest or a stake in the outcome or they have a bias toward one parties’ goals and objectives.  Their professional association’s written Standards of Conduct, however, require impartiality, and freedom from favoritism, bias or prejudice.

How we define those interests is difficult in many cases.  Is it a per se conflict of interest for mediators and facilitators to take on governmental disputes within their own town?  There is a fine line that mediators and facilitators walk when taking on those disputes.  The answer is easy when the result will have a direct effect upon them, such as a zoning dispute where they own property.  The line becomes more obscure when the outcome of the dispute has a tangential effect, such as a labor dispute or a dispute among governmental officials or between the council and school board members. 

  For example, a mediator was asked to mediate a dispute between two towns in a school union, where one town claimed that it was carrying too much of the financial burden.  The mediator accepted the job even though his spouse was an employee of the school district, because the outcome of the dispute would not alter his spouse’s income, which was set by collective bargaining, and the parties were disputing over how much each would pay for a school budget that was already set.  The distribution of money within the budget was not at issue.

  The local knowledge of mediators and facilitators can assist municipalities to settle disputes more quickly, and with a lot less fuss.

  Experienced facilitation and mediation professionals are available throughout Maine.  The best way to reach them is through the Maine Association of Mediators, whose website is