Impartiality in Mediation
Neutrality and the Mediator
The essence of effective mediation requires that the process is maintained and protected by the mediator and this requires absolute neutrality from the mediator, but moreover it requires that all parties within the process perceive that neutrality. There cannot be effective mediation if either party feels that the mediator has provided judgement or favour towards either side.
The importance of neutrality
In fact where there may be material consequences as a result of the mediation process, any perceived lack of neutrality acts as a barrier to the communication process and may impede engagement in the process. Herein lies the difficulty, neutrality is perceptive and cannot be measured, as it has not been truly defined. According to the journal of law and social enquiry, there does not exist a finite definition nor tool for measurement. Any studies that do exist rely on mediator reports, participant feedback and the successful outcome of agreement.
According to Cobb and Rifkin (1) mediators define neutrality using the concepts of justice, power and ideology. During interviews with fifteen mediators involved in community mediation each sited a time when each of the three concepts came into play. One sited mediation between a parent and child where the mediator ensured justice through encouragement of the daughter to fully express views, the second where a severe power imbalance existed and the mediator took one party to private session to encourage them to fully explain their needs, and a third where the mediator was ideologically at odds with an institution involved. During each of the three processes the mediators actively checked their own neutrality so as to preserve the process, and each sites having to actively not act in preference for one client despite obvious imbalances between the two parties.
Moore(2) further tells us that impartiality and neutrality signify that the mediator can separate his or her opinion from the outcome of the dispute, from the desires of the disputants and can focus on the ways to help them make their own decisions without unduly favouring one of them. The final test of this is the acceptance of the disputants of the outcome, as acceptance is likely to be less if one side feels the mediator was partial to the opposing party.
Impartiality in Mediation
The notion of impartiality impacts on neutrality, as for effective mediation to take place the mediator must either discount his own views, opinions and ideologies or separate them from the process of mediation. The latter of which is possibly the easier to do since the first requires the mediator to deconstruct his/her own values and beliefs. For the mediator to separate bias, induced by personal values, then he must first identify the potential for bias, or lack of neutrality prior to mediation. This may become clear to the mediator during the pre-mediation meeting and allow the mediator time to employ strategies to separate the process from either himself or the conflicting parties. To some extent the mediator must recognise that a portion of partiality may be subconscious and so in effect the mediator must resolve subconscious issues whilst consciously displaying neutrality. Cobb and Rifkin tell us that 14 out of 15 mediators interviewed cited impartiality as neutrality with some stating that co-mediation or working in a mediation team helped guard against bias, whereby one practitioner could identify bias unseen in another.
Partiality versus neutrality
Another interesting tactic that a mediator may need to employ may appear as partiality rather than neutrality. This can occur where a significant power imbalance exists between conflicting parties, where the mediator recognises one side as potentially coercing the other into accepting a resolution which may serve the purpose of the stronger side. In this case, for the mediator to ensure neutrality and fairness of process he/she may need to employ strategies which appear to benefit the weaker of the two sides, but which in fact only guarantee that both opposing opinions are heard equally and justly. In this instance the mediator may act as an advocate of one side during the mediation. This is neutrality through practicing equidistance and requires the mediator to create some distance from one side and proximity to the other. However this may also mean that equality and equidistance does not arise from equal time being given to each disputant.
The difference between the two situations above is that in the first bias may be a negative pyscho-social factor which impedes the mediation process but in the second it may be seen as being proximate to a disputant and may be a positive tool if used correctly and symmetrically. This practice can be considered controversial but is covered within the ethical standards of The Society for Professional Dispute Resolution (3). There is therefore a difficulty for the mediator as the two practices do not easily coexist. If a mediator stays truly impartial they cannot then guarantee that the interests of both parties are served equally, but also to practice equidistance the mediator must use bias and this may appear impartial. It is left then to the mediator to use intuition and personal judgement to balance two conflicting pressures within the process. Both situations above highlight the need for the mediator to manage hidden interests and agendas (including their own) to balance power, ideologies and promote justice, acknowledging also that the ideologies of a party can have a significant impact on the hidden interests of the parties.
A mediator is not a judge
A key factor here is that at the outset the mediator must highlight that mediation is a facilitative process that enables agreement to be reached between two conflicting parties. The mediator must stress that he/she has no role in judgment of the agreement or in suggestion as to how the agreement may be formed. By making each of the parties aware that they are explicitly responsible for the formation of an agreement or lack thereof, the process of mediation is sold to the disputants as they become aware that during the process they will find out more about each other’s needs and interests in order to make decisions that may form an agreement. To that end the mediator provides a form of procedural justice to each participant in that he/she guarantees that each side will be heard fairly and equally, but does not provide justice in any other form as the mediator has no ownership of the agreement, only of the process.
Further review of mediation by Carol Izumi, former director of the George Washington University Law School Consumer Mediation Clinic and Community Dispute Resolution Centre, (4) uses the model standards for mediation adopted by the American Law Society in 2004 and explains that mediation is a process in which an impartial third party facilitates communication and negotiation and promotes voluntary decision making by parties in dispute. A further description is that neutrality and consensuality give mediation its legitimacy (5). It further tells us that whilst the mediator may control the process the two parties control the decision making and it is the guarantee of the mediator not to show partiality to any one side or to use information to further the case of any party that encourages the disputing parties to fully engage in the process and fully disclose their issues.
Trust in the mediation process
Trust is attained and maintained when the mediator is perceived by the disputants as an individual who understands and cares about the parties and their disputes, has the skills to guide them to a negotiated settlement, treats them impartially, is honest, will protect each party from being hurt during mediation by the other‘s aggressiveness or their own perceivedinadequacies, and has no interests that conflict with helping to bring about a resolution which is in the parties‘ best interest. Only when trust has been established can the parties be expected to be candid with the mediator, disclose their real interests and value the mediator‘s reactions (6).
Before a mediator is to accept a mediation case it is clear that the mediator must not have any prior or potential relationship with either client, any personal or financial interest in the outcome and where interest may arise or be perceived to arise it must be declared prior to the mediation. There is possible suggestion that a mediator's fees may cause concern for neutrality. Take for example the case of a mediator, who works for a law firm and mediates in a dispute involving a significant client. The mediation process may be poorly remunerated compared to potentially more lucrative representation of the client in the future. There may be pressure on the mediator to impress the client, and this could imply bias.
Deborah Kolb (7) tells us that she observed two types of mediation practice. Those who were orchestrators worked harder to encourage the parties to come up with the solution, whilst the deal makers saw themselves as part constructing and selling the resolution to the parties. The first type are the facilitative mediators and the second evaluative. There is obviously greater scope for neutrality to be affected in the second form since the mediator may directly affect the outcome deal and this will be influenced by the mediators own beliefs and opinions. The potential for the mediator to lose neutrality is further increased when the mediator engages in transformative mediation as he/she must move one party towards a greater understanding of the needs and issues of the other. If the mediator has a natural affinity towards the needs of one side then there is potential for ineffective mediation where bias has been introduced.
How a mediator can stay neutral
So the question arises that since we are all imperfect, and have acknowledged unconscious bias and processional bias may impact on the ability to mediate effectively, how do we manage mediation to ensure the outcome is that designed and accepted by the parties and not of consequence to the mediator? The first tool is that prior to each mediation the practitioner must be aware of personal bias and actively avoid it, and also accept that neutrality may move within the mediation. It is a fluid rather than a static concept. The second is to use strategies to ensure both external and internal neutrality.
External neutrality ensures it is perceived by both parties. This is where the mediator uses statements, dialogue and structure to move through the process in a way which displays the neutrality. By planning and structuring the mediation, and the pre-mediation, the mediator protects the parties' empowerment and ensures equal opportunity to express concerns interests and needs. This must include the physical environment of the mediation process, including neutrality of venue, which may be hugely significant in a workplace dispute, the seating and presence, or lack of, of tables etc.
The use of appropriate language is of importance here, for example in a workplace conflict between management and staff the use of business like language may disenfranchise a lesser educated client. These can be considered and amended during pre-mediation and throughout the mediation process. Internal neutrality is, as discussed earlier, best counteracted by recognition and the application of mindfulness mediation whereby the mediator consistently practices actively preventing habitual response to a given situation. In other words the mediator must continue to check their own internal response to what is said and presented within mediation. It may also be the case that co-mediation can help prevent bias as long as the mediators come from different socio- economic or cultural backgrounds. This may be of importance where race or gender is seen as causing bias.
In essence neutrality is not a simple concept and is something that must be continuously monitored and practiced to provide effective mediation.
1. Practice and Paradox: Deconstructing Neutrality in Mediation
Sara Cobb and Janet Rifkin Law & Social Inquiry Vol. 16, No. 1 (Winter, 1991), pp. 35-62
2. Christopher Moore The Mediation Process1986
3. Society for Professionals in Dispute Resolution A Guide For Ethics and Practice.
4. Implicit Bias and the Illusion of Mediator NeutralityJournal of Law & Policy [Vol. 34:71
5. Hilary Astor, Rethinking Neutrality: A Theory to Inform Practice—Part II, 11AUSTRALASIAN DISP. RESOL. J. 145, 146 (2000).
6. NANCY ROGERS & RICHARD SALEM, A STUDENT‘S GUIDE TO MEDIATION AND THE LAW 7–39 (1987), as reprinted in STEPHEN B. GOLDBERG ET AL., DISPUTE RESOLUTION: NEGOTIATION, MEDIATION, AND OTHER PROCESSES 113 (4th ed. 2003)
7. DEBORAH M. KOLB, THE MEDIATORS (1983)