The Risks Of Neutrality – Reconsidering The Term And Concept

As mediators, we seem to be drawn to the word
“neutral” as a descriptive term for what we do
and as a conceptual frame for our professional
role. The terms “neutral” and “neutrality” are
peppered throughout our discussion of mediation
in much of the literature, and in the standards of
practice of many, if not most, professional
mediation organizations, in court rules, and even
in enabling legislation. AFM Standards encourage
mediator “impartiality and neutrality” in Section
IV, while the Society of Professionals in Dispute
Resolution (SPIDR) makes ongoing reference to
the role and responsibility of the “neutral,” as a
generic term to describe both mediators and
arbitrators in their Standards.

Most experienced mediators learn early on that
the ideal of remaining neutral is quickly battered
when faced with the realities of effectively
managing conflicts. Some have even reached the
point of challenging the notion that neutrality is
worthy of our aspirations as a goal at all. (See
Gibson, K., Thompson, L. and Bazerman, M.,
“Shortcomings of Neutrality in Mediation,”
Negotiation Journal, Jan.1996.)

Beyond the theoretical discussion, however,
there are some very practical risks for mediators
to consider in continuing to describe themselves
as neutrals. Specifically, a disproportionate
number of grievances against mediators are
based in the claim that the mediator did not
appear to act, or in fact act in a neutral manner.
This raises the problematic situation that while
the mediator may believe he or she is clear as to
meaning of neutrality, the parties are not nearly
as clear. Deborah Kolb, in When Talk Works
(1994), has catalogued the disparity between
what mediators purport to say they do and how
they in fact practice. In short, when a mediator
describes him or herself as being neutral, that
sets up for the parties expectations of behavior
that may not, cannot and maybe should not be
considered realistic in mediation.

This becomes more than a mere semantics
discussion because, when the mediator has been
perceived to have been more attentive to one
party than the other at a particular point in the
mediation process, that extra attention is often
viewed by the other party as partiality. This can
easily become the source of a formal grievance.
Most mediators appreciate that, in order to
develop the requisite level of trust with each
party, they must engage and validate the
perspective of each disputant. Some mediators
resist validating a client’s thinking for fear that it
will be taken or understood as agreeing with him
or her and is considered inconsistent with
neutrality. There are many examples of mediator
technique and strategy which are clearly useful,
but are nonetheless construed by clients as
contravening neutrality and therefore suspicious,
if not unethical. The caucus (meeting with each
party separately) can be precarious, especially
for the self-described neutral mediator. Asking
reflective questions that probe the efficacy of
one or the other of the parties’ negotiation
perspective can be likewise difficult. While a
judge can and perhaps should remain “above the
fray,” distant, poker-faced and neutral, a
mediator has no such luxury available to him or
her. In fact, the mediator may have a duty to
question each party about their respective
perspectives, raise concerns and anticipate
unintended consequences implicit in a potential
course of action in order to assure that the
parties’ understandings and agreements are
informed and consensual. It is just these sorts of
issues that constitute the bulk of grievances
against mediators.

Neutrality has many and varied meanings, and
therein lies the difficulty. It refers both to the
role of the mediator and how he or she will
supposedly act. In the classic sense of the term
“neutral,” the mediator: (1) will not intervene in
the substance of the dispute; (2) is indifferent to
the welfare of the clients; (3) has no previous or
present relationship with the parties outside of
the mediation; (4) will not attempt to alter
perceived power balance variances; (5) is
disinterested in the outcome; and (6) is
unconcerned with the impact of the settlement
on unrepresented parties (Gibson, K.). Sarah
Cobb and Janet Rifkin in “Practice and Paradox:
Deconstructing Neutrality in Mediation”, Law and
Social Inquiry, (vol. 16, 1991), have noted that
there are at least three different conceptions of
neutrality at work in mediation and that the
rhetoric of neutrality reinforces assumptions that
are widely held but not made explicit or clear.
The ambiguity of the term is even more
confusing for clients in conflict, many of whom
come to mediation with the preconceived notion
that a mediator is or should be just like a judge.
No amount of explanation may be sufficient to
dislodge their notions and clarify the ambiguity.
What is more, the clients’ misconstruction of the
mediator’s role is reinforced and further confused
by the use of the term “neutral. ”

The term “neutral” is attractive because it is
anchored in our techno-rational belief system
and derived from methods of scientific inquiry. In
that sense it is culturally linked-we want to think
that if the mediator is neutral and disengaged,
he or she will be more objective, rational,
dispassionate and unbiased. Etymologically, the
origins of the word “neutral” is from neuter-being
neither active or passive, nor disengaged. The
opposite of “neutral” is not “partial” or
“partisan,” but rather, “involved” or “engaged.” A
car in neutral goes nowhere, the power of the
engine is not transmitted to the gears. For the
mediator to present him or herself as neutral
may lead to faulty assumptions by the mediator
which lead to the misunderstandings of the
mediator’s role by the clients. (Benjamin, R. D.
“The Physics of Mediation: Reflections of
Scientific Theory in Professional Mediation
Practice,” Mediation Quarterly, vol. 8, 1990). In
many other cultures, the last person people want
to help them settle their conflict is a remote,
unfamiliar neutral. Even in our own culture,
parties in conflict may think they want a neutral,
but when questioned, they are really looking for
a third party who will hear and validate their
concerns. Perhaps too many mediators seize
upon neutrality as a role descriptor because the
term is convenient and familiar-it is a kind of
shorthand to explain a complex activity.

However, the risks of what the term “neutral”
sets up in clients’ thinking about the mediator
role outweigh the usefulness of the word, even
as shorthand. “Impartial’ is an alternative
descriptor, but perhaps still suffers from
sounding distant and detached. Another more
dynamic term to describe the mediator’s role that
is increasing in popularity is “balanced.” In
contrast to the more static neutral mediator, who
has no responsibility to protect either party, a
balanced mediator has the responsibility to
protect both parties. In being balanced, the
mediator has permission to question both parties
about their negotiating perspectives and inquire
about any circumstance or matter germane to an
effective, resilient agreement. In short, a
mediator is not hog-tied and bound by the
traditional narrow role limitations of a neutral.
Most importantly, in avoiding the confusion
surrounding the meaning of neutrality, the
mediator runs less risk of client
misunderstanding and a potential grievance.

Originally published by Mediate.com in 2001

                       

Robert Benjamin

Robert Benjamin, M.S.W., J.D., has been a practicing mediator since 1979, working in most dispute contexts including: business/civil, family/divorce, employment, and health care. A lawyer and social worker by training, he practiced law for over 25 years and now teaches and presents professional negotiation, mediation, and conflict management seminars and… MORE >