Losing Neutrality
by David River

Neutrality has become a pillar of mediation ethics and synonymous with the definition of mediation, yet it is a term with negative meaning - it is “not” something else. The Oxford English Dictionary gives several shades of meaning to “neutrality,” as it might relate to mediation: “remaining inactive in relation to the belligerent powers”, “taking neither side in a dispute” or “assisting neither of two contending parties or persons” (OED, 2003). Unfortunately, most everyone would agree that mediators do have a role and a place in a dispute, and an active one at that. Though it may be a characteristic of a mediator not to explicitly take sides in a dispute, neutrality does not actually define what the role of a mediator is. In fact, the principle of neutrality, which guards against an active role, stands in the way of being able to declare what mediation and the activity of mediators actually is.

As many practitioners and academics have pointed out, “neutrality” within the field of dispute resolution is a largely undistinguished umbrella term, which includes meanings as far-ranging as avoidance of conflict of interest to freedom from judgment and bias.1 Rifkin, Millen & Cobb (1991) point out that neutrality has become more of a “folk concept” than a useful or meaningful term (p. 151). Rather than a defined, functional construct, neutrality lives for mediators as a categorical moral imperative – regardless of the effects of neutrality, it is right to be neutral and wrong to be biased.

In reviewing the family mediation literature over the last twenty years, it is apparent that the field has struggled over the fuzzy concept of neutrality. Cohen, Dattner & Luxenburg (1991) highlight the inability of the concept of neutrality to address the need for family mediators to promote the “best interests of the children”. Many authors have sought to redefine neutrality in order to give it greater relevance, including “Active Neutrality” (Solstad, 1991), “Expanded Neutrality” (Taylor, 1997), and redefining neutrality as a practice, rather than a state of being (Rifkin, Millen, & Cobb, 1991). Tidwell (1994) abandons the concept of neutrality entirely, and instead reframes the mediation process a process of persuasion that “ultimately, lead[s] the parties to agreement, which is, after all, the objective of mediation” (p. 11). Missing from these struggles is any author who promotes the utility and importance of neutrality in and of itself.

Returning to the original question, if a mediator’s job is to be an active participant in a conflict, and not just a disinterested outsider, then what does “neutrality” have to do with it? Why is neutrality a core tenant and does it really define the practice of mediation?

The Many Faces of Neutrality

The many different meanings of “neutrality” can be categorized into structural neutrality, psychological neutrality, and functional neutrality. As in the ACR Standards of Practice for Family and Divorce Mediation (2002), neutrality often refers to several of the definitions at once.2

Structural Neutrality
Structural neutrality refers to the mediator’s relationship to the dispute and to the parties of the dispute. Specifically, it has to do with a conflict of interest that exists from a pre-existing condition rather than a condition that arises during the mediation.

1. Relationship to dispute. Several sources refer to the importance of the mediator having no interest in the substantive issues of the dispute. An acceptable mediator is “outside” of the dispute and is able to provide fresh insights (Moore, 1996) and has no personal interest in the outcome of the mediation. A mediator is to have no personal or financial gain from a particular resolution of the conflict.

2. Relationship to the parties. A mediator who has a prior relationship with one of the parties that “compromises or appears to compromise the mediator’s impartiality” may make the mediator unacceptable, unless disclosed and waived by the parties (ACR Standards, 2002). One exception is found in Wehr & Lederach (1991), who suggest that the most trusted conflict intervener in the South American culture is someone from within – a confianza – and not an outsider (Smith, 1994).

Structural neutrality functions to insure that the mediator is not vested in a particular outcome of mediation. However, this principle is rarely distinguished from more general goals that a mediator must have as a compass during mediation, which may include understanding, informed decisions, and resolution.

Psychological Neutrality
A mediator is commonly referred to as “a neutral third party.” Rifkin, Millen & Cobb (1991) point out that this state of “being neutral” is an “ability to interact in the absence of feelings, values or agendas”. Mediators must therefore “guard against psychological processes that may favor either disputant” (Cobb & Rifkin, 1991). The importance of maintaining psychological neutrality is to protect the self-determination of the parties, which is the “hallmark and central value to most mediators” (Taylor, 1997). Without psychological neutrality, it is unclear that parties will be able to define their own outcome, as the mediator’s agenda may have pushed the parties one way or another.

The assumption that a mediator has the implicit or covert power to determine the outcome of mediation seems to justify the pursuit of neutrality. However, as Taylor (1997) points out, it may be an impossible pursuit.

“Those trained in the mental health disciplines know that there is no such thing as total impartiality, neutrality, or lack of bias when working with people... the third party to the dispute in the room changes the equation between the disputants. How the parties conflict, what they do and say, will be modified by the presence of the mediator and by whatever level of rapport or relationship that mediator has built with the participants” (p. 220).

Therefore, the mediator may have an unavoidable impact on the dispute. This impact may be as innocuous as asking one question over many others.

The problem with the mandate to be free of feelings, values or agendas is that these psychological factors are largely outside of the control of any human being. Some suggest that instead of an absence of bias, mediators must seek awareness of bias so that they have a choice not to let it impact the mediation. However, Cobb & Rifkin (1991) point out that while the mediator is focused on their internal states, they are missing out on the ongoing discourse of the mediation, which may be the substance of the process.

In addition, the disputants may explicitly desire a mediator to impact the mediation – to provide useful information, point out problematic areas of a potential agreement, relate the experience of other clients, insure a standard of fairness, and insure that the final document will be acceptable in court. The ACR Standards explicitly state that a mediator’s training must include family law and knowledge of the impact of divorce on children. Therefore, even though the mediator is trained to intervene and the parties in mediation expect the mediator such intervention, the impact is often constructed within mediator ethics in opposition to the highest mediator values.

The Practice of Neutrality

Neutrality as a practice was separated by Cobb, Rifkin and Millen (1991) into two forms: impartiality and equidistance. Psychologically, impartiality is the “ability to interact in the absence of feelings, values, or agendas” (Rifkin et al., 1991), p. 152). In practice, impartiality is withholding or suspending judgment, which helps “maintain an unbiased relationship with the disputants.” In other words, the practice of neutrality is to actively withhold ones judgments. This can be done whether the mediator has feelings, values or agendas regarding the dispute or not. In one case study, Cohen, Dattner & Luxenburg (1999) commend the mediator for withholding judgment about a proposed parenting plan, instead encouraging each disputant to go home and “clarify his or her own point of view” (p. 346). The practice of impartiality helps parties to feel safe and respected in mediation.

A second practice of neutrality, explored by Rifken et. al. (1991), is the practice of “equidistance.” Equidistance refers to techniques used by the mediator to ensure that each disputant is able to express their “side” of the dispute, which may include temporary alignment with one or the other disputant.

“Equidistance works to the extent that the mediator can assist each person equally. In contrast to impartiality, where neutrality is understood as the ability to suspend judgment, equidistance is the active process by which partiality is used to create symmetry” (p. 153).

The authors point out that the practices of impartiality and equidistance are paradoxical, and suggest that mediators often struggle with the competing needs to be impartial while encouraging the participation of each disputant.

Retooling Neutrality

The struggles over the concept of neutrality have produced many efforts to narrow the definition of neutrality or redefine the concept.

Narrowing Neutrality
One of the most popular ways to limit the scope of neutrality is to limit mediator neutrality to the outcome of the process (Cohen, Dattner, & Luxenburg, 1999). In this construct, the mediator has power over the process of the mediation, but not the outcome, which is the domain of the participants.

Another attempt to limit the scope of neutrality is to allow the mediator to intervene with information or encourage a particular settlement only after the consent of the parties. As Taylor (1997) writes, “The clients are in charge of the mandate, scope, and outcome of mediation” (p. 225). In a variation on this theme, the mediator defines “in what situations he will intervene, and share his values and views with them, thus giving them control over the complex situation” (p. 228). In this way, a mediator’s bias are revealed and approved by the parties prior to their use in mediation.

Redefining Neutrality
Relying heavily on Cobb and Rifkin’s work, Solstad (1991) defines “active neutrality” as a “way for mediators to recognize and more actively control their role in the process of justice” (p. 69). Mediators are not passive, but actively use their substantive and procedural expertise to give parties access to the justice process and create fair agreements based on sound information. Taylor (1997) explores “expanded neutrality,” which includes balancing the power of the parties, allowing for emotional catharsis during mediation, training clients in better negotiation techniques, and promoting personal transformation.

Conclusion

The mediation field has become attached to neutrality, despite its apparent contradiction with the many activities that a mediator performs in the midst of a conflict or negotiation. Regardless of where the term came from and why it was of importance to the beginning of the field, perhaps it should be taken off of the ideological stand of moral imperative - right and just in and of itself – and treated as a constellation of mediation practices that are more or less useful depending on the context of the conflict and the people involved. This application of case-based reasoning may yield a rich conversation between the actual practices of mediators and our abstract norms.3

Mediator activities currently considered not-neutral include suggestions, persuasion, evaluation, and a host of other tactics that mediators regularly use to bring about agreement and settlement. These activities may be problematic, but I suggest that the problems do not come from the fact that they are not neutral. Giving suggestions is problematic in some situations because people may not want to hear it and may feel like their own ideas and concerns are being sidestepped. Giving one person more time to voice their position during mediation isn’t problematic because it isn’t neutral, but because the other person may lose trust in the mediator or may leave the process altogether. At other times such techniques may be entirely appropriate, welcomed by the parties and leading to better agreements than the parties would have otherwise created.

Mediators need a positive understanding of their purpose and role in conflict. Neutrality fails to provide a positive definition, and, moreover, often contradicts the actual practice of mediation. Mediation is for specific purposes, which are in themselves distinct from other fields. Mediators seek to maximize the value realized in settlement, insure fairness, and create durable agreements. These are causes for which the structure and practice of neutrality may or may not be of use.

APPENDIX A
Standards of Practice for Family and Divorce Mediation
Adopted 09/04/2002

Standard IV

A family mediator shall conduct the mediation process in an impartial manner. A family mediator shall disclose all actual and potential grounds of bias and conflicts of interest reasonably known to the mediator. The participants shall be free to retain the mediator by an informed, written waiver of the conflict of interest. However, if a bias or conflict of interest clearly impairs a mediator's impartiality, the mediator shall withdraw regardless of the express agreement of the participants.

A. Impartiality means freedom from favoritism or bias in word, action or appearance, and includes a commitment to assist all participants as opposed to any one individual.

B. Conflict of interest means any relationship between the mediator, any participant or the subject matter of the dispute, that compromises or appears to compromise the mediator's impartiality.

C. A family mediator should not accept a dispute for mediation if the family mediator cannot be impartial.

D. A family mediator should identify and disclose potential grounds of bias or conflict of interest upon which a mediator's impartiality might reasonably be questioned. Such disclosure should be made prior to the start of a mediation and in time to allow the participants to select an alternate mediator.

E. A family mediator should resolve all doubts in favor of disclosure. All disclosures should be made as soon as practical after the mediator becomes aware of the bias or potential conflict of interest. The duty to disclose is a continuing duty.

F. A family mediator should guard against bias or partiality based on the participants' personal characteristics, background or performance at the mediation.

G. A family mediator should avoid conflicts of interest in recommending the services of other professionals.

H. A family mediator shall not use information about participants obtained in a mediation for personal gain or advantage.

I. A family mediator should withdraw pursuant to Standard IX if the mediator believes the mediator's impartiality has been compromised or a conflict of interest has been identified and has not been waived by the participants.

Bibliography

     Arras, A. D., & Steinbock, B. (1995). Introduction: Moral reasoning in the medical context. In A. D. Arras & B. Steinbock (Eds.), Ethical issues in modern medicine (4th ed.). Mountain View, CA: Mayfield Publishing Co.
     Cobb, S., & Rifkin, J. (1991). Practice and paradox: Deconstructing neutrality in mediation. Law and Social Inquiry, 36-62.
     Cohen, O., Dattner, N., & Luxenburg, A. (1999). The limits of the mediator's neutrality. Mediation Quarterly, 16(4), 341-348.
     Moore, C. W. (1996). The mediation process (2nd ed.). San Francisco: Jossey-Bass.
     Oxford English Dictionary - Online. Retrieved April 28, 2003
     Rifkin, J., Millen, J., & Cobb, S. (1991). Toward a new discourse for mediation: A critique of neutrality. Mediation Quarterly, 9(2), 151-163.
     Smith, J. D. D. (1994). Mediator impartiality: Banishing the chimera. Journal of Peace Research, 31(4), 445-450.
     Solstad, K. E. (1991). In support of active neutrality. Mediation Quarterly, 17(1), 67-81.
     Taylor, A. (1997). Concepts of neutrality in family mediation: Contexts, ethics, influence, and tranformative process. Mediation Quarterly, 14(3), 215-236.

Footnotes

1 These include (Smith, 1994) and (Taylor, 1997).
2 The Standards of Practice for Family and Divorce Mediation (2002) use the term “impartiality” rather than “neutrality,” but the term’s meaning is identical to neutrality and carries the same confusion. The Standards define impartiality psychologically/functionally as “freedom from favoritism or bias in word, action or appearance” and structurally as the disclosure of any possible conflict of interest
3 See casuistry, p. 37-39 in (Arras & Steinbock, 1995)