Neutrality and Impartiality in the Mediation Process

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Neutrality And Impartiality In The Mediation Process
Maher Hana
Australian Catholic University

Is it possible to maintain neutrality and impartiality when dealing with conflict in the mediation process?  Use examples to support your view. Does the concept of mediator empowerment challenge the concept of mediator neutrality? In your answer distinguish between the concepts of neutrality and impartiality. What are the possible consequences for the mediation process if a mediator takes a minimalist intervention approach or if the mediator actively implements strategies to ensure that imbalances are addressed, that procedural fairness is maintained and fair and just outcomes are encouraged?

The mediation process is a delicate situation which has to be handled fairly and without bias. Each of the parties involved show conflicting positions on certain issues, different or similar interests and argue the opposing party to be wrong (Hung, 2002). The mediator, who is an independent, unbiased third party to the dispute, is there to facilitate communication between both parties while also helping to reach a rational solution (Hung, 2002). This is done by identifying and clarifying issues in dispute and considering all options available that can be used to reach a settlement that is equally fair to all parties involved (Hung, 2002). For any resolution to be reached, a mediator must remain neutral and impartial at all times. In order for the mediation process to run smoothly and function efficiently, the mediator must gain the trust and respect of all parties involved in the mediation process. If this does not occur, the parties involved may question the neutrality and impartiality of the mediator (Hung, 2002).

As a mediator, to be neutral is to have no direct interest in the outcome of the dispute, to have no prior knowledge of the dispute, not pass judgement on the disputants, not to influence the outcome by using his or her expertise; and to act fairly and without bias towards all parties involved (Boulle & Nesic, 2001). Impartiality is referred to as being equally distant from the parties involved ensuring the mediation process is fair (Van Gramberg & Teicher, 2006).

If the mediator attempts to assist the mediation process by helping the parties to come to an informed decision, then problems arise in the practice of neutrality and impartiality (Van Gramberg & Teicher, 2006). When there is a power imbalance between the disputants, impartiality is put to the test. The mediator may be required to create more opportunities to help the less powerful voice their views. Although, this might be seen as biased and neutrality might be breached because the mediator might be seen as acting on behalf of the less powerful, especially if the less powerful party is agreeing to terms which are unfair and unequal (Van Gramberg & Teicher, 2006). However, the mediator may perceive this part of his or her role to ensure the disputants are treated fairly and equally, which leads to inconsistency between the neutrality and disinterest of the mediator in the mediation process (Van Gramberg & Teicher, 2006).

Neutrality is quite difficult to achieve and maintain during the mediation process, especially when an equal balance between the parties needs to be created by the mediator (Astor, 2007). In order to appear impartial, the mediator must expect the parties involved to reach a voluntary, un-coerced agreement (Taylor, 1997). Astor (2007) stated that it is more essential for the mediator to maintain neutrality than impartiality in case the mediator needs to balance the power between the parties. This may require the mediator to implement strategies that may cause them to appear as if they are not being impartial.

Due to the concerns mentioned above, it is not only important to empower, but also to balance power during a mediation session. This concept requires an incredible amount of skill by the mediator. If the mediator...
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