In this one I ask: what is neutrality in mediation? And: does it matter anyway?
We know what neutrality means in war time. In the Second World War, for example, countries such as Switzerland and Sweden declared themselves neutral. In other words, they did not take part in the fighting or provide support to any of the combatants. They stood apart and observed what others were doing.
Is this what mediators do when the parties invite them to help resolve their dispute? No, it is not. Why have a mediator present if that is all they did? So, what does neutral mean in the context of mediation?
Let’s clear up a common confusion. Neutrality and impartiality are not the same thing, although they are often used synonymously. The key difference is that neutrality defines a mediator's position in relation to the parties. Impartiality defines the mediator's conduct towards the parties.
Neutral in the context of mediation means that the mediator does not have:
- a stake in the outcome of the mediation
- a pre-existing relationship with one of the parties which could dispose them towards favouring that party over the other
- any sort of conflict of interest.
- acts in an even-handed way, not showing support for one party as against the other.
- treats each party with the same degree of consideration and respect.
- operates the process on the day in a way that allows all parties the same opportunity to express themselves either to the other parties or to the mediator in public or in private.
Neutrality is a case of objective reality: either the mediator has previously acted for one of the parties or they haven't. Impartiality is more a case of subjective perception. Does one of the parties feel that the mediator is being unfair towards them or not?
You can be neutral but not impartial. You can be impartial but not neutral. For example, an employee, John, undergoes disciplinary proceedings brought by HR. A decision is made by John’s line manager. John has a right of appeal to a higher level of management. The appeal is heard by Caroline. She is employed by the same employer but has not participated in any of the earlier proceedings or decisions.
Is Caroline neutral? Probably not. She is part of the employer. She is not an outside, independent third-party. But she can be impartial treating John and HR in an even-handed way, showing both the same respect and understanding, allowing both the same opportunity to say what they want to say and not favouring one over the other.
Admittedly, doing this is not as easy for an internal appeal body as it would be for an external appeal body, but it can be and is done.
For some commentators both neutrality and impartiality are impossible or even undesirable. Greg Rooney an Australian mediator and trainer asserts that ‘… the next quantum leap in the theory and practice of mediation is to detach from the concept of neutrality as a core element of mediation practice.’
He goes on: ‘Neutrality is physically impossible to attain as a personal attribute for a mediator or a practitioner in any other profession or field, despite the modern Western mediation movement's appropriation of it as a core element in the practice of mediation.’
Bernie Mayer a well-known American mediator and trainer goes further and encourages mediators to move away from neutrality. In his Mediation Academy interview, he said: ‘We're not just about resolving conflict. We are about helping people engage in it as productively as possible and sometimes that means upping the ante, in fact. Sometimes that means escalating the conflict.’
Both Rooney and Mayer emphasise that mediators are human. They have their own life experiences, types of training, values and beliefs. All these influences shape how mediators behave and think. True, but to say that because of this nobody can be neutral or impartial is to adopt impossible and unrealistic definitions of neutrality and impartiality. What they're actually describing is impartiality rather than neutrality but leave that for the moment. Can mediators do anything about it?
Of course, they can and they do. They rely upon:
- Their training. Mediators are trained to be careful in their choice of language and gesture. They're taught about cognitive biases and cultural awareness.
- Reflective self-awareness. They think about what they are doing during the mediation. They become aware of their patterns of behaviour or habits of thought. They self-monitor for whether or not these could be misinterpreted as showing bias or prejudice.
- Professional and life experience. They know how they tend to react in particular situations. They realise that they have personal preferences. They learn how to cope with unpleasant people and challenges. They remember how they dealt with them in the past. If they dealt with them well, they know what to do. If they didn't deal with them well, they know what not to do.
People hire mediators to help them solve disputes which they've not been able to sort out themselves. They expect mediators to add value. Mediators must not be scared by the likes of Rooney and Mayer into doing nothing for fear of not being impartial or neutral.
Remember being neutral is not the same as being neutered. Being impartial is not the same as being inert. After all you are a mediator are not just a moderator. You do engage with the parties on the day. With proper training, adequate self- reflection and self-awareness you can avoid accusations of bias and favouritism. They are in fact very rare, largely because in the end the parties, not the mediator, make the decision whether or not to settle.
Does it matter whether or not mediators are neutral or impartial? Of course, it does. Say you were at a mediation where the mediator spends twice as long laughing and joking in the other room as they do talking to your room and when they do they constantly interrupt you and roll their eyes. How would you feel?
Everyone at mediation wants to feel that that they have been treated fairly-both by the other side and by the mediator. Fairness cannot be achieved without mediator neutrality and impartiality. You just have to remember the difference.