By Amanda Selvarajah
This post is the third in a series of posts on this blog written by students studying Non-Adversarial Justice at the Faculty of Law at Monash University. Students were invited to write blog posts explaining various complex areas of law relating to dispute resolution to ordinary readers. The very best post on each topic is published here.
The National Mediator Accreditation System removed “neutrality” as a requirement on their list of ethical standards in 2015. This may suggest a trend away from the truly “neutral” mediator in the sense of a ‘detached third-party’. But does this mean we are to rule out neutrality entirely as an ethical consideration in mediation? With a trend of increasingly interventionist mediators, a complete disregard of the concept could place participants at great risk of being subjected to ethically dubious decisions.
Perhaps the reason for the mediation community’s shift from neutrality is not because of a flaw in neutrality itself, but rather a failure to grasp a version of neutrality that can and should be an important element of an ethical mediation. Instead of defining neutrality as an unattainable attribute intrinsic in the nature of a mediator, perhaps we should be viewing neutrality as a constant practical endeavour throughout the mediation process, a mediator who’s nearly neutral.
Why Neutral At All?
A mediator in its simplest description is a ‘trained, impartial third party’ who assists parties in making their own decisions. However, mediation remains unregulated and virtually unmonitored as it is typically conducted in private with assurances of confidentiality. Mediated parties are expected to relinquish a guarantee of the principles of justice and fairness that would be inescapable in a common law court. It is these qualities of mediation that leave participants particularly vulnerable to a biased decision in the event of a potentially opinionated, interventionist mediator. Therefore, it is the consensual participation in the process and the assurance of “neutrality” that many consider the source of the process’s legitimacy.
On the spectrum of mediator involvement in mediation, the facilitative approach, which focuses a mediator’s role to procedural stages, leaves parties with as much freedom and control in the substance and outcome of the mediation as possible. The evaluative approach, on the other hand, has even been disregarded by some, like the Victorian Association for Dispute Resolution, as being a form of mediation at all. They argued that the mediator’s ‘input into the content, and sometimes the outcome’ of the mediation made the process inherently contrary to the core principles of mediation.
Such or any mediator involvement may suggest, as critics of the evaluative mediation approach do, an immediate breach of neutrality. But this is only the case if neutrality is restricted to a ‘strict, dualistic sense of the mediator either being or not being neutral.’
Why Not Be Absolutely Neutral?
To truly make the case for a re-imagined concept of neutrality, one must first accept the bold suggestion that mediations are not neutral in its literal sense and could likely never be so. Mental health professionals have found that ‘there is no such thing as total impartiality, neutrality, or lack of bias when working with people, even though as practitioners they may strive for such ideals.’ In mediation specifically, research has shown that in practice, mediators may affect and influence mediation at almost all stages of the process. Examples include ‘the ways they structure the interchange between the parties, in terms of the sequencing of storytelling and the framing of responses and what needs to be responded to.’ It follows then that any assessment of a mediator’s success in reference to their ability to be neutral, in the literal sense of the word, would set almost all our mediators up for failure.
However, regardless of a mediator’s ability to be neutral, there is the added consideration that absolute neutrality may not even be conducive to the goals of a truly successful mediation. For example, in the case of the simultaneous expectations that a mediator be both absolutely neutral but also committed to facilitating an equal conversation, one often comes at the cost of the other.
Mediated parties often experience a power imbalance. Therefore, a hands-off mediator may in these cases fail to protect ‘vulnerable parties from inappropriate pressure’. In family law mediation (family dispute resolution or FDR), for example, parties often meet at very unequal terms. Mediators in these cases may be caught between either claiming a position of absolute neutrality, thereby stripping them of the power to ‘redress imbalances’, or recognising a role in sometimes having to take ‘affirmative action… to achieve a balanced agreement.’
Family dispute resolution practitioners must consider if ‘family dispute resolution is appropriate’ before mediation is undergone. This may allow for vulnerable parties to be excluded from the mediation process, sparing mediators the struggle of balancing these competing expectations. But some victims still ‘feel that FDR processes fail to identify and manage the risk of family violence effectively.’ The exclusion also does nothing for parties beyond family abuse dynamics who may still be more vulnerable than the other party due to cultural, societal or financial factors.
This concept of absolute neutrality is similarly challenging for indigenous mediators, to whom Western notions of neutrality may not make sense. In indigenous mediation it has been recommended that a respected elder would likely be the more appropriate choice of mediator than a neutral third-party. Selecting a mediator for their ability to intimately understand the parties as opposed to their ability to detach themselves from them is arguably in direct opposition to Western expectations of a successful mediator. A commonality in our understandings of a successful mediation, however, may be the increasing interest in addressing the conflict at the heart of mediations.
Therapeutic jurisprudence, a philosophy focused on critically viewing our legal systems to maximise the health and wellbeing of those who engage with it, has been applied to improve and direct law reform throughout Australia’s legal system. Critically assessing the purely facilitative mediation process through a therapeutic jurisprudence lens unearths the potentially anti-therapeutic effects of having a non-interventional, solution-centric mediator who as a result, fails to address and redress the underlying tensions at the heart of parties’ relationships. The development of therapeutic jurisprudence throughout Australia is proof that the indigenous community’s focus on rebuilding and strengthening relationships is not unique and could be facilitated in mediations with a more involved mediator.
A New, Nearly Neutral Approach
Neutrality was seen as a cornerstone of mediation’s procedural fairness, the idea that ‘what is required by procedural fairness is a fair hearing, not a fair outcome’. The facilitative approach has, therefore, been described as having the highest regard for procedural fairness on the basis of perhaps a rather simplistic equating of a fair hearing with a decision-maker who allows parties to make their own case with as little intervention as possible.
This argument assumes, however, that participants of mediation are always equally capable of articulating and pursuing their own interests and that they are always more concerned with a practical outcome than a resolution of the underlying feelings and conflict which brought on the mediation in the first place.
However, research has shown that in mediation ‘the basis of authoritativeness (e.g. of the ability to gain voluntary acceptance from members of the public) is changing from neutrality-based to trust-based.’ This suggests that contrary to advocates for neutral mediators, parties may actually prefer a more interventionist mediator who is willing to foster openness and build a relationship of trust over a detached one.
So perhaps instead of aligning neutrality with a mediator who never intervenes, it would be best to hold mediators’ interventions to standards ‘of non-partisan fairness or impartiality’ instead. For example, weighing, as an objective third-party, whether an intervention would make sense to ‘facilitate a productive dialogue by encouraging or even coaching reticent or inarticulate parties’ to promote a generally more just proceeding. After all, in the immortal words of Theodore Roosevelt, ‘Impartial justice consists not in being neutral between right and wrong, but in finding out the right and upholding it, wherever found, against the wrong.’
Amanda Selvarajah is (@amanda_darshini) currently in her third year of the Bachelor of Law (Honours) program at Monash University. Her research has focused on questioning the limits of the law and its rooms for improvement across a variety of fields. Last year, her research into the abuse of forensic evidence in court was selected for presentation at the International Conference of Undergraduate Research.
Excellent, thought provoking and well written. FDR is an interesting field as the practitioner has to make a number of ‘judgements’ during the course of the mediation. Often, by providing appropriate safeguards, the mediator is saving the vulnerable party from having to appear in court on their own and having to cross examine a perpetrator.
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Thank you so much, Janet. FDR was definitely one of the more interesting instances of mediation to research when deciding just how neutral a mediator should be given the particularly high risk for vulnerable dynamics in FDR. But I suppose the challenge will be in ensuring such safeguards still help mediators tread carefully along the line between appropriately intervening and imposing.
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Thank you for your post Amanda. I really like your assertion that the concept of neutrality has (should) have been reframed from something mediators claimed to achieve to a value that mediators ought to strive towards. While party and institutional pressures encourage opinion making and directing by mediators, honouring the core mediation values of self-determination and empowerment requires mediators to maintain an effort towards neutrality (while recognising that as human beings we can never achieve pure neutrality).
I disagree with any conflation of neutrality with detachment (and I may have misinterpreted you). The skill of mediation is to support people to make their own decisions – in a very engaged, attentive way. Mediators need to actively engage with what is being discussed, the relationship dynamics, and other things that influence the way people are managing their conflict. A neutral mediator will help parties to identify what their issues are and decide how to work with those issues within their context and relationship. The facilitative mediator might not provide an opinion about substantive content, ought to avoid personally influencing the priorities parties place on content, but will use techniques such as summarising and reframing to assist parties to work actively with that content. That is not being detached from the content.
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Thanks for taking the time to read my post, Olivia. I completely agree with you. A mediator is never truly detached from the content of proceedings. My choice of the word “detached” was confined to a mediator’s detachment from the outcomes of the proceeding i.e. being uninvested in a particular result. While it is imperative that mediators never favour a particular outcome over another, I felt that in instances, for example in FDR, a mediator may have to advocate or defend a particular outcome more strongly on behalf of a party due to certain power imbalances that may prevent the weaker party from properly articulating it themselves. Not to favour that outcome and have it win out in the end, but to simply ensure that all desired outcomes were being properly discussed and given their fair share of attention during proceedings. Therefore, your definition of a neutral mediator who helps parties identify their issues and works with those issues within their context and relationship is exactly the version of neutrality I hoped to advocate in the piece.
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I thought that might be the case Amanda… I know it challenges the view of many FDR practitioners, but I think they always have a choice about how to work within the context of power imbalance. They don’t have to “save” people by stepping into an advocacy role and I personally think this is sometimes too easily chosen as the path in FDR, because of the way some FDRPs interpret their statutory duties. I have found my conversation with FDRPs who practise a transformative style of mediation some of my most insightful. You don’t ignore the power play, but ultimately your job is to support people to decide what they will do with their reality. Otherwise there is real danger of a false sense of security – the mediator is not there to manage power for the parties after the process ends. This is why the coordinated FDR pilot was so important – lawyers were available to play the partisan role and advocate for particular outcomes. FDRPs could then get on with performing their very important facilitative “nearly neutral” role.
Thanks for generating so many interesting thoughts. This is why I love the ADRRN – engaging with other researchers and thinkers is so invigorating and important! Welcome to our vibrant community 🙂
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