Neutrality in Mediation

May 3rd, 2011 - Erin Johnston

neutralityThe primary tenet in mediation is neutrality.  As a neutral, the mediator is charged with being impartial throughout all communication and involvement with the parties in the conflict.

This means that a mediator cannot take a side or advise either party in the dispute. There is no judge, no arbitrator of right or wrong. The sole purpose of mediation is to allow those in dispute to create a resolution that works for them. Sometimes those in conflict look for someone to validate their perception of the “truth” behind the issue – but that is not the mediator’s role, nor is it appropriate for the neutral to weigh in on.

Even without request by the either party in the dispute, there are many potential challenges to mediator neutrality, they include:

  • Prior Relationships
    Neutrality can only truly exist when there is no prior relationship between the mediator and any person involved in the dispute. Bias is virtually impossible to avoid otherwise.  The prior relationships to avoid include friendships and acquaintances as well as professional relationships. Someone who has been a lawyer, therapist, financial analyst or coach to one person cannot be an effective neutral, no matter what the circumstance. Prior relationships also include those with friends and acquaintances.
  • Payment for Services
    The structure of paying for mediation services can also affect neutrality.  It is easy to see how, despite the best intentions of the mediator, receiving payment from only one source changes, at the very least, the appearance of neutrality.  If both parties are not comfortable with the impartiality of the mediator, the neutral’s ability to be effective is greatly compromised. Mediation programs can be designed to offset this potential issue, specifically the mediator can be removed from the financial transaction completely.
  • Initial Information Received in the Referral for Services
    Initial contact with the mediator can also negatively affect mediator bias.  Disputes and conflicts always include an emotional component.  Some delve into their side of the dispute more than others at initial contact.  Even something as simple as stating who is prompting the issue can affect bias as it provides initial descriptive information not in the presence of the other party.
  • Conflict of Interest
    The mediator must NOT have a vested interest in the outcome of the dispute. Vested interests could come from prior relationships with one party or trying to save one side money. In addition, personal interests or beliefs of the mediator may preclude them from a neutral role in the outcome.
  • Hidden Bias
    It is important to remember that there are often hidden or unknown thoughts or beliefs that negatively affect mediator neutrality. We can hope that professional mediators would refuse to take a case that touches on their biases. However there are times when issues may arise in the midst of a mediation that trigger bias on the part of the mediator.

It is possible for mediation programs to be designed to lessen the threats to impartiality. And some mediation providers are better at dealing with certain types of disputes than others.

It is important to address any perceived lack of neutrality during the mediation session. Those choosing to mediate a resolution should discuss neutrality concerns with the provider, and only continue if they feel that impartiality is assured.
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