16 Jan 2019
A prominent issue in mediation concerns the mediator neutrality, particularly in the context of the self-determination of the disputing parties (Fehrenbach & Hubbard, 2014: 227). The issue gives rise to a number of topics, such as how neutrality may be defined, how it may be regulated, and how it can be incorporated into the obligations and approach of the mediator. A major problem concerns whether or not mediator neutrality is possible to achieve in practice. This is an important issue because mediator intervention has the potential to erode the justiciable quality of mediation and can also undermine the self-determination of the disputing parties. Mediator neutrality is no doubt a core element of mediation. However, despite – or perhaps even due to – its fundamental nature, scholars and academics have struggled to develop a consensus on how neutrality may be defined. Before one can examine the merits, demerits and practical possibility of mediator neutrality, it is therefore necessary to seek a suitable definition of neutrality.
Defining neutrality in mediation
In its most generalised form, neutrality may be defined as the absence of any bias in relation to either disputing party, and the mediator’s utilisation of his position to appropriately balance the distribution of power between the parties (Cobb & Rifkin: 1991: 41-42). Neutrality may also be defined by reference to what it achieves – most prominently fairness. This essentially means that it is the duty of the mediator to exclude any personal opinions and beliefs from the mediation process. In exercising neutrality, the mediator must aid the parties in arriving at – through self-determination - a mutual agreement (Spencer & Brogan, 2006: 92). Neutrality in this respect can be defined as impartial assistance.
It is important to recognise that the attempt to formulate a clear and consistent definition of neutrality is not without its problems. This also means that it is difficult to examine when a particular mediator can be said to have acted below standard. Many scholars have faced prominent issues in attempting to identify the quality expected of mediators in the context of neutrality. This is because there are various and different definitions of neutrality (Hin, 2002: 7).
Overlapping definitions of neutrality have caused confusion, and this has hindered consistent regulation of the mediation process. Susskind (1981: 4) for instance proposes that mediator neutrality concerns the need for mediators to ensure that the final agreement of the disputing parties is both fair and consensual. Mayer (2012: 862) on the other hand states that mediators should not be granted the authority or be subject to the duty to determine the fairness of any particular outcome.
An alternative definition of neutrality relates to the absence of any bias towards the disputing parties (Nauss-Exon, 2006: 396). It is therefore evident that the definition of neutrality remains rather ambiguous.
The role of the mediator in the context of neutrality
It is one thing to seek to define neutrality and quite another to link it to the role of the mediator and the benefits of mediation. The unique nature of mediation (in comparison to litigation) can only be fully realised if the mediator conducts himself in an appropriate manner. The mediator must therefore oversee the mediation process whilst at the same time allowing the parties to negotiate without unnecessary hindrance (Nauss-Exon, 2006: 325).
The mediator operates as a facilitator who must refrain from supporting any party and from seeking to influence the outcome of the negotiations without the consent of the disputing parties (Roberts & Palmer, 2005: 153).
The role of the mediator is therefore far from simple – he must encourage the disputing parties to develop a mutual understanding yet refrain from influencing them unduly (Fuller, 1971: 308). Mediation is indeed focussed on the relationship between the disputing parties and consequently, prescriptive, impersonal rules are inappropriate. The mediator’s role must thus coincide with the core goals of mediation, which is to encourage the disputing parties to arrive at a consensual compromise which accounts for their relationship and also their “shifting contingencies” (Fuller, 1971: 325).
The impact of neutrality on the disputing parties
It is important to determine the potential impact that mediator neutrality can have on disputing parties in order to identify its value as part of the mediation process. Neutrality could be said to be attached to the duty of the mediator to ensure that the disputing parties are encouraged to locate mutual respect for each other. This enables them to communicate issues and problems that they may have free from hindrances.
The mediator must additionally prevent public opinion and any self-interests from entering into and influencing the negotiation process (Rock, 2004: 348). The role of neutrality can therefore be said to ensure that an equal balance of power exists between the disputing parties. This maximises the consensual nature of the outcome. Any clear imbalances of power between the disputing parties must be balanced by the mediator.
This essentially means that mediator neutrality is closely connected to the quality of the outcome that has been reached by the disputing parties, and also the mediation process in general (Jacobs, 2002: 1410). The parties must, in light of this requirement, be informed of all and any relevant information so that they may develop a mutually-agreed outcome without the undue influence of the mediator. However, certain factors require mediator intervention.
An illegal agreement or the lack of awareness of the disputing parties as to their available options require that the mediator intervene – albeit in a purely informative manner. The mediator’s role in this respect is unique because he must fully inform the parties yet remain unbiased (Izumi, 2010: 92).
Regulating and imposing standards of neutrality
It is recognised that the ability to examine the level of neutrality achieved by a mediator objectively is extremely difficult (Mulcahy, 2000: 136-137). It has for example been suggested that the failure or fulfilment of mediator neutrality cannot be judged because it is essentially case-specific (Astor & Chinkin, 2002: 153). The mediator can find it difficult to be absolutely neutral in practice, and may indeed allow bias to influence his position without his awareness (Rifkin et al, 1991: 158).
This has given rise to concerns pertaining to the need to develop a legislative definition and standard of neutrality. Such concerns are not unfounded. Boulle (2005: 31-32) for instance proposes that mediators, when giving information and opinions, should remain completely free from personal interest and emotion, and that they should not use previous experience to influence the disputing parties’ decisions. The UK Practice Standard on mediation states that impartiality requires the equal assistance of all disputing parties, free from bias, conflicts of interest and corruption (Morris, 1997: 320). It has on the other hand been suggested that mediator neutrality should be based upon higher standards, and thus include the duty to investigate any actual or potential conflicts of interest (Astor, 2007: 223).
Is Mediator neutrality possible in practice? – problems
A major problem that plagues the practical possibility of mediator neutrality is that the mediation process is private. This means that it is ultimately difficult to ensure that mediators remain neutral. External investigations are extremely difficult to conduct and consequently mediators remain largely unchecked, meaning that sub-par mediator performance cannot be easily detected (Astor, 2000: 146).
Imagining that such investigations could be possible, the problem remains that there is no concise definition of neutrality, meaning that it would be difficult to accurately examine how neutral a mediator actually is. A major conflict arises in this respect. On the one hand it is important to ensure that mediators do not unduly intervene in the mediation process in order to maximise the disputing parties’ self-determination. On the other hand it is equally important to remember the core duty of the mediator – to aid the parties in arriving at a consensual agreement (Mayer, 2011: 812).
The main issue is thus not whether a mediator should be permitted to intervene. It is instead the degree to which he may appropriately intervene without having an undue or negative impact upon the need for neutrality. It is indeed recognised that neutrality does not completely prevent the mediator from becoming involved in the mediation process (Morris, 1997: 322). The problem clearly circulates around establishing a suitable balance between allowing necessary intervention and eliminating unnecessary intervention.
Is mediator nue possible in practice? – solutions
It may be possible to overcome the above problems. The first solution lies in developing a concise, legislative definition of mediator neutrality and what it requires. Neutrality in this respect could be approached as the need for the mediator to identify, develop and maintain equality in the disputing parties’ power and self-determination so that a fair and mutual outcome may be reached (Cobb & Rifkin, 1991: 44). A mediator, in order to achieve neutrality in practice, must therefore locate a correct balance between (a) too much intervention (which hinders the self-determination of the disputing parties), and (b) too little intervention (which causes the balance of power between the disputing parties to become uneven) (Coben, 2004: 81). Any accurate examination of the power of each disputing party should result in identifications of imbalances, and provoke the mediator to encourage maximum communication. The mediator must thus gain a deep and accurate understanding of the position of each party, so that he may only intervene when necessary and without undue bias.
The practical possibility of mediator neutrality
Neutrality does not require that the mediator exert no power over the mediation process. Clearly, different stages of the mediation process necessitate different degrees of mediator intervention. This is particularly the case for stages of the mediation process in which points of law need to be addressed (Mayer, 1987: 83). Mediator neutrality can be made practically possible, provided the mediator can determine when he should and should not intervene in the mediation process, as well as the extent to which he should intervene in any given scenario (Gray, 2006: 216). For example, intervention may be necessary if a legal issue requires clarification, if information is clearly being withheld from a disputing party, or if negotiations are not conducted in good faith (Haynes & Charlesworth, 1996: 76).
How can neutrality be achieved?
Mediators must moreover ensure that neither of the disputing parties abuses the mediation process by employing unfair techniques. The UK Mediation Practice Standards indeed confirms that the mediator possesses the power to intervene in the mediation process in order to propose possible solutions and to ensure that accurate advice has been given to the parties (Morris, 1997: 325).
Bush and Folger (2012: 88) indeed agree that a mediator’s power of intervention should be restricted to the endeavour to ensure that fairness is achieved throughout the whole of the mediation process. This supports the claim that mediator neutrality is possible in practice. It simply needs to be developed into specific and clear principles and requirements that can imposed upon mediators. It is for instance clear that mediators should not use their positions to influence the final outcome of the mediation process (Hin, 2002: 9).
It is possible to conclude that mediator neutrality is potentially possible to achieve in practice. This does not however mean that certain problems are difficult to overcome, particularly in the context of monitoring mediator neutrality. It is of vital importance that a suitable balance be achieved between too much and too little mediator intervention, and this directly relates to mediator neutrality. A literal definition and application of neutrality would severely reduce the power of the mediator to intervene when necessary (Gray, 2006: 217). This is an unsuitable application of the concept of mediator neutrality. It is thus necessary to apply neutrality with reference to the role of the mediator and his duty to facilitate the mediation process. It is important to recognise that mediator intervention – provided it is necessary and limited to justifiable situations – does not undermine mediator neutrality.
Mediator neutrality must therefore be considered in light of the overall role of mediators – to ensure justice and fairness through promoting the interests of all disputing parties (Society for Professional Dispute Resolution, 1986: para. 15). In conclusion, mediator neutrality is possible in practice, provided a concise and clear approach to what neutrality actually means in the context of mediation. It requires a consistent stance on when the intervention and conduct of the mediator can be deemed necessary and how it may be subjected to specific standards (Kressel & Pruitt, 1985: 193).
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Andrew today publishes Part 2 of his mediation series entitled 'SOMETHING'. The series of articles continues the reporting and review of cases and contemporary issues within the field of Mediation. The topic covered within this edition is 'Regulatory and Ethical Dimensions' and focuses on 'SOMETHING'.
We could then consider adding in something like this, I use an example of another contributor:
Arush Khanna is a member of CIArb and Partner at Triyana Legal, a multi-service law firm in India. He handles the Commercial Disputes Practice of the firm from its offices at New Delhi and Mumbai. He is currently India's National Representative before the Young Lawyers Committee of the International Bar Association and is also on the Core-Committee of the Young Members Group of CIArb India.
Dr Andrew Agapiou, combines his academic background in Construction Law & Arbitration with over 25 years of industrial experience, helping clients to manage and resolve their disputes. Andrew is a Registered Mediator, specializing in Commercial, In-Court and Workplace Mediation. Andrew is coordinator of TG 89, an International Mediation Task Force for the CIB (International Council for Research and Innovation in Building and Construction), which resulted in the publication of an edited book on international perspectives on Court-Connected Construction Mediation Practice for Routledge. In 2017 he was appointed joint coordinator of CIB W113 Working Commission on Law and Dispute Resolution.
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