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Neutrality
 
By
Michelle Maiese


June 2005
 

 

What is Neutrality?


Being neutral means:

  1. Not being affiliated with either side
  2. Being mutually acceptable to both sides
  3. Disinterested
  4. Having no personal interest
  5. Approaching the proceedings with an open mind
"'Neutrality' is not something to be given an explicit and essential definition. Neutrality is not an essence; it is an absence. We must dance around it with enough synonyms and examples to be able to recognize when it ain't present." -- James W. Vice

The terms 'neutral' and 'neutrality' commonly appear in discussions about proper conduct for mediators and in the standards of practice of many professional mediation organizations. [1] Adopting a neutral stance, it is argued, helps mediators to establish trust, credibility, and respect. It is commonly thought that if a mediator is unable to maintain a neutral stance, codes of ethics and standards of practice require that he or she withdraw from the case.

As an indication of its apparent importance, the term appears more than 35 times in the Society of Professionals in Dispute Resolution's standards of conduct. Christopher Moore (2004) maintains that before the process begins, the independent mediator "should explain that he or she is impartial in his or her views and neutral in his or her relationship to the parties." [2] The commonly accepted "outsider-neutral" conceptualization of mediation suggests that the mediator should come from outside the conflict situation and have no commitment or connection to either side. Many believe that the presence of a neutral third party serves to legitimize the mediation process.

Variation in Meaning

It is important to note that neutrality has many and varied meanings and that several different understandings of neutrality are typically employed in the context of mediation. The term refers to sort of the role the mediator is supposed to take and how he or she is supposed to act. According to experienced mediator Robert Benjamin, neutral mediators:

  1. will not intervene in the substance of the dispute;
  2. are indifferent to clients' welfare;
  3. have no relationship with the parties outside of the mediation;
  4. will not attempt to alter perceived power balance differences;
  5. are disinterested in the outcome; and
  6. are unconcerned with the impact of the settlement on unrepresented parties. [4]

In contrast, Kevin Gibson, Leigh Thompson, and Max Bazerman (1996) identify three distinct conceptions of neutrality.

  1. Neutrality as impartiality, which holds that the mediator should be free of bias and should set aside his or her opinions, feelings, and agendas.
  2. Neutrality as equidistance, which focuses on the idea that mediators should try to give equal consideration to each side.
  3. Neutrality as a practice in discourse. Mediators are supposed to shape problems in ways that give all speakers a chance to tell their story in a way that does not contribute to their own de-legitimization or marginalization. [5] The mediator gives each side a chance to talk about their positions and concerns, and then reframes these issues in a more neutral way so that parties are more likely to listen to and understand the other side's viewpoint. [6]

Then the mediator helps the parties to explore settlement options and to move toward a solution that all can agree on. Neutrality means that the mediator who facilitates this discussion should not have an interest in advancing the goals and positions of any party involved.

Similarly, Rachel Field (2000) points out that the term 'neutrality' encompasses "issues such as

  1. a lack of interest in the outcome of the dispute,
  2. a lack of bias towards one of the parties,
  3. a lack of prior knowledge of the dispute and/or the parties,
  4. the absence of the mediator making a judgment about the parties and their dispute,
  5. and the idea that the mediator will be fair and even-handed." [7]

It seems clear that as a standard of practice for mediators, neutrality is not very precisely defined. Nevertheless, the most common usages of the term appear to focus on notions of even-handedness and impartiality.

Wallace Warfield was a mediator with the Community Relations Service which mediates civil rights disputes in the U.S. Frequently CRS mediates between communities of color and white authority figures: police, school administrators, etc, who seem to have more power. Here Warfield discusses the difference between neutrality and impartiality in this context:

There's a difference between neutrality and impartiality. If you think about neutrality as being neutral about issues, well then arguably I would say that many CRS people, myself included, were not neutral about the issues. But what was more important and more relevant was impartiality, a sense of equidistance between parties. Now what was more important to that proverbial police chief, or whomever was the power elite in that particular community, was not your neutrality. They were smart enough to know that you weren't going to be neutral. They were more concerned with questions like, "Can you help us? Can you actually play a role and get us out of this messy situation we've found ourselves involved in, and can you be impartial enough to be able to do that?" So that meant when the representatives of the negotiators on the low-power minority side began to screw up, that you would have the courage to tell them, "Listen, you're not really negotiating in good faith. If you really want to get something out of this issue, then you need to sort of change your pattern of negotiation." That's the essence of impartiality in my mind. -- Wallace Warfield interview from the Civil Rights Mediation Oral History Project, Available online at http://www.civilrightsmediation.org/interviews/Wally_Warfield.shtml


Concerns about Neutrality

Although there are times when neutrality is very important, some mediators feel that it tends to get over-emphasized as the defining feature of the mediator's role. [8]

One central difficulty surrounding the notion of neutrality is that in practice, it is often unclear what it means to be a third-party neutral. Does it mean the mediator will not take sides; or that the mediator is indifferent to clients' welfare; or simply that the mediator has no personal relationship with any of the parties? While most mediators claim that they are neutral, they do not often tell disputants what the concept of neutrality means to them, or which sense of neutrality they will be relying upon to guide the proceedings. [9]

Another question that is currently generating a great deal of debate in the mediation field is about whether mediators can and should, in fact, be neutral in any or all of the ways described. Is neutrality an attainable goal for mediators? Is it a worthy goal?


"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." -- Robert Benjamin, "The Risks of Neutrality: Reconsidering the Term and Concept," [Available at: http://www.mediate.com/articles/benjamin.cfm]

Some scholars and practitioners have doubts whether, in the middle of an intense conflict, anyone can be neutral. They point out that any action on the part of the mediator involves value judgments about how to make the session more productive or about how to reach an acceptable settlement. Mediators shape " the way in which issues for discussion [are] identified and priorities set" [10] and often steer disputants toward certain solutions. It seems the mediators have considerable power in mediation and that they do not always exercise it in a way that is entirely neutral with respect to the content and outcome of mediation processes. [11] In fact, any interventionist approach that involves using argument and logic to persuade one of the parties threatens neutrality because it demands a mediator's active involvement. However, many believe that this sort of active involvement is necessary if parties are to find a mutually-beneficial solution.

Indeed, there are various useful mediation strategies that clients might regard as a violation of neutrality. For example, the caucus (meeting with each party separately) can be particularly precarious insofar as it may raise doubts about the mediator's evenhandedness. Similarly, disputants may view a mediator's efforts to probe one of the parties' perspectives as an indication of involvement in the substance of the dispute or the mediator's bias toward or against one particular view or option.

Confusion about what neutrality should mean in the context of a particular mediation process can result in grievances against mediators. Therefore, before they begin mediation, mediators should attempt to clarify the meaning of "neutrality." This helps to ensure that parties do not enter the process with unrealistic expectations. If mediators continue to assert their neutrality in their intake processes and introductory statements without explaining what this notion really means, they may misrepresent the sorts of services they can provide. [12] Moreover, if mediators remain committed to strict neutrality, this significantly limits what sorts of services they can offer. If the disputants believe that neutrals will not offer sufficient opportunities for justice and validation, they are unlikely to be willing to participate in mediation. [13]


Clients want to be told who is right and who is wrong; they want someone to tell them whether a proposed solution is fair and reasonable; they want help in convincing other parties of the merits of their case; they want substantive advice; they want the mediator to guide the process with a firm hand and in an efficient manner; and they want to make sure they are not subject to attacks. - Paraphrased from Bernard Mayer, Beyond Neutrality: Confronting the Crisis in Conflict Resolution, p. 83.

In addition, it is unclear that neutrality is what disputants actually want. Some theorists have pointed out that the most effective mediator will not be one who is distant and detached, but rather one who "has permission to question both parties about their negotiating perspectives and inquire" about matters pertaining to an effective agreement. [14] It is important to note that the opposite of "neutral" is not "partisan" or "partial," but rather "involved" or "engaged." [15] Rather than neutrality, people embroiled in deep conflict typically want assistance, advocacy, advice, and wisdom. [16] They want someone who will listen to and validate their concerns and help them find the best solution possible. They may also want the mediator to help steer them away from an agreement that is completely unfair, unconscionable, or lacking in durability.

Other theorists point out that in many cultures, the last person people want to settle their dispute is someone who is disengaged and uninvolved. In some cultural contexts, being neutral is associated with being inactive, ineffective, and even cowardly. [17]

The image of the detached and neutral mediator also may fail to reflect the needs and values of many cultures. Indeed, John Paul Lederach, a leading scholar and practitioner of mediation in Latin America, maintains that there are numerous conflict situations in which insider-partial mediation may turn out to be preferable. An insider-partial mediator is someone who is already involved in the conflict and aligned with one of the parties. Despite this person's partiality, he or she is someone who is known and respected by all parties to the conflict and trusted to be fair. This individual's personal knowledge of the disputants' histories and the issues at hand is often extremely useful in helping parties to resolve their differences. Oscar Arias's mediation of the Nicaraguan conflict between the Sandinista's and the East Coast Indian tribes is an example a mediation process that did not rely on neutrality, but rather, utilized an insider-partial teaming with an outsider neutral in the process. [18]

Addressing Power Imbalances in Mediation

In the event that the mediator believes there is a power imbalance, should he or she attempt to address this? Some definitions of neutrality say no, that would violate the mediator's code of conduct. But most mediators acknowledge that a relatively even balance of power is necessary to obtaining a fair settlement. So what should the mediator do?

One of the mediator's central functions is to guide the communication process in such a way that all parties have a fair chance to participate in decision-making. Fulfilling this responsibility can become particularly problematic in cases where there is a huge discrepancy the parties' ability to communicate effectively, or one party is so overpowering that the other does not speak up to defend their own interests.

Some theorists believe that any effort on the part of mediators to redress power imbalances between the parties will fly in the face of their alleged neutrality. Moore (2004) suggests that the mediator take steps to help the weaker party to mobilize the power he or she already possesses. However, unless the mediator has the approval of both sides, he or she should not act directly to develop new power for the weaker disputant. [20] To act as a direct advocate puts neutrality and impartiality at risk.

In cases where the weaker party possesses very little power, however, there is little that the mediator can do to correct this. Some have argued that as a result of neutrality, "the mediator is unable to correct power imbalances in the course of the mediation process, or to counter an unfair outcome." [21] Emphasizing neutrality may result in an unfair settlement and a loss of rights for the weaker party. The neutral mediator has little room to provide needed help to one or other of the parties and may be unable to express any concerns they have about an agreement. Thus, in cases where power is inequitably distributed, neutral intervention may simply allow for the domination of one group by another and lead to unjust settlements. [22]

In response to this problem, the dispute resolution field has struggled to find a way to add empowerment responsibilities to the role of the neutral intervener. Unfortunately, it appears that as the neutral's empowerment efforts expand, his or her ability to successfully carry out the neutral role diminishes. Several years ago Guy Burgess and Heidi Burgess wrote that since neutral mediators cannot adequately address these difficulties, what was needed, in addition, were "enlightened advocacy advisors." [23] While neutral mediators help to facilitate negotiations within the context of existing power relationships, advocacy advisors would seek to empower low-power parties by helping them develop and implement more enlightened and effective strategies for advancing their interests. Unlike the neutral, whose goal is reaching a solution that is acceptable to both sides, the advocacy advisor would focus on reaching a just agreement that represents the weaker side's interests. The underlying notion was that the advocacy advisor can fulfill the task of empowering the weaker party so that the mediator can remain genuinely neutral.

Although the Burgesses didn't take this concept further than one article, the idea has been echoed by others in the field, most recently by Bernard Mayer in his 2004 book Beyond Neutrality. [23a] Here Mayer argues that dispute resolution professionals have been hampered by their insistence on maintaining strict neutrality and that there are many non-neutral roles that they can play to help conflicts be brought to fair and effective conclusion. Though he doesn't use the same term, Mayer is arguing for the same role.

Alternatives to Neutrality

Despite the criticisms raised about neutrality, surely there is something important about the idea that mediators should strive to be neutral. The general idea seems to be that mediators should guard against partiality or prejudice with respect to the parties' personal characteristics and do their best to conduct the process in an unbiased manner. However, to expect that the mediator will be devoid of values, prejudices, and beliefs is unrealistic. Moreover, there are cases where the mediator's efforts to steer the proceedings in a particular direction are extremely important. In addition, because few parties actually want a mediator who is detached and disengaged, as the term 'neutrality' suggests, it may be more helpful to describe the mediator's role in different terms.

The idea that mediators should be unbiased or impartial might more accurately characterize what people are after. However, the term 'impartial' may lead to a picture of a mediator who is detached and distant. Some have begun to prefer the term 'balanced.' A balanced mediator has a responsibility to protect both parties rather than being neutral and disengaged. [24] He or she has permission to question parties about their perspectives and address any circumstances that stand in the way of an effective and lasting agreement.

Similarly, Gibson, Thompson, and Bazerman move away from the idea that mediators should be neutral, and instead emphasize the notion that mediators should guard themselves against certain kinds of bias. They maintain that the central role of the mediator is not to stay out of the proceedings, but rather to provide symmetric, rational advice to each side. [25] While they agree that mediators need to be careful to avoid costly biases, they center on an approach that emphasizes rational analysis, rather than the mediator's intuitions about neutrality. They argue that mediators should actively take part in the negotiation to facilitate an optimal agreement among the parties. The goal is not to arrive at a solution that all parties can agree to, but instead to devise the best solution possible. These authors recommend what they call "symmetric prescriptive advice" as an alternative to neutrality. [26]

The Community Relations Service mediators interviewed in the Civil Rights Mediation Oral History Project [27] had a related approach to neutrality. Many of them worked to "empower" or build the capacity of the low-power group (typically the community of color) in order to be able to then carry out a neutral process. Many of those mediators strongly believed that it was impossible to undertake a neutral mediation unless the parties at the table were of roughly equivalent negotiating capacity, if not outside power. Thus they helped prepare each side for the negotiations and explained to the high power group that this was necessary to make the process go smoothly. Mediator Silke Hansen explains:

Question: Let's talk a little bit more about the issue of power disparity between the parties, and CRS's role as a neutral. Even though you say you are a neutral, you also, in a sense, try to empower the low-power group, do you not? How do you balance that?

Answer:
If you mean how do I justify that, let's start with that piece first. Very easily, because I don't think I can do an effective job of mediating between two parties if there isn't some balance there. So unless I help bring about that balance, mediation won't work. Of course, you can't necessarily assume that because one side is a minority community that it's the powerless community. That's another issue. But let's assume that, in fact, there is a power imbalance. Unless I can help balance that, and empower each party to effectively participate at the mediation table, we're not going to have an effective, successful mediation. So I explain that to the institution and I offer pre- mediation training to both sides. I also use that as a way to help each of the parties identify what their interests and concerns are, and what they hope to get out of this process. Sometimes, that's particularly important for the institution, because they often start out from the perspective of, "Okay, how much do they want, and how much of that are we going to give them?" They rarely think in terms of, "What do we want, and how much of that are we going to get?" The reality is that they usually do want something from the community, so this helps them become aware of that. This is another trust-building mechanism as well because I'm acknowledging that, "You need things too! What is it that you want? What is it that you're looking for?" I want to make sure that both sides are heard and that we can talk about how each side's needs can be met. I also let the institution know that it's in their best interests to have a well-trained, capable party on the other side because it will be easier to deal with and negotiate with them if they are capable. Part of what the institution is afraid of is that they will have a group of ranting, raving maniacs on the other side that they can't communicate with. So part of what I'm providing is some security, some format which is reasonable from their perspective. I may say to the institution, "Now, you understand that party A is angry and they're going to need to express that. But trust me, we're going to get beyond that, and get to problem- solving." So I lay the groundwork for there being some anger. I hate to call it "venting," because to me "venting" sounds too patronizing. I don't want to be allowed an opportunity to vent; I want to be allowed an opportunity to be heard. So, even though the term "venting" might apply, I avoid that word because it does sound patronizing to me. It has undercurrents of, "They're just spouting off, and they really have nothing to say." In most cases they have a lot to say, but they've never been allowed to say it and be heard before.

--Silke Hansen interview from the Civil Rights Mediation Oral History Project. Available online at http://www.civilrightsmediation.org/interviews/Silke_Hansen.shtml

 

Whether this approach is alternative to neutrality or simply a different interpretation of neutrality is not clear. What is clear is that such an approach has resulted in countless successful mediations of conflicts that are usually defined as "intractable." That suggests that the CRS must be doing something right!

Footnotes

[1] Robert Benjamin, "The Risks of Neutrality: Reconsidering the Term and Concept," Mediate.com. <http://www.mediate.com/articles/benjamin.cfm>.

[2] Christopher Moore, The Mediation Process: Practical Strategies for Resolving Conflict, 3rd ed. (San Francisco: Jossey-Bass Publishers, 2004). <http://www.beyondintractability.org/bksum/moore-mediation>.

[3] ibid., 354.

[4] Benjamin.

[5] Kevin Gibson, Leigh Thompson, and Max Bazerman, "Shortcomings of Neutrality in Mediation," in Negotiation Journal, (12:1, 1996), 71. <http://onlinelibrary.wiley.com/doi/10.1111/j.1571-9979.1996.tb00079.x/abstract>.

[6] "Mediator Neutrality" Wisconsin Department of Agriculture

[7] Rachel Field, "Mediation Praxis: The Myths and Realities of the Intersection of Mediator Neutrality and the Process of Redressing Power Imbalances," 5th National Mediation Conference, Australia, 2000. View a revised version of this paper at: http://www.mediate.com/articles/fieldr.cfm. Note: the format of this list was changed here to facilitate comparisons with the earlier lists.

[8] Bernard Mayer, Beyond Neutrality: Confronting the Crisis in Conflict Resolution, (San Francisco: Jossey-Bass Publishers, 2004), 17. <http://www.beyondintractability.org/bksum/mayer-beyond>.

[9] Field.

[10] "Meeting in the Middle: A Study of Solicitors' and Mediators' Divorce Practices," (Edinburgh: The Scottish Executive, 2000). <http://www.scotland.gov.uk/Resource/Doc/156542/0042039.pdf>.

[11] Field.

[12] ibid.

[13] Mayer, 29.

[14] Moore, 355.

[15] Benjamin.

[16] Mayer, 17.

[17] ibid., 83.

[18] John Paul Lederach and Paul Wehr,  "Mediating Conflict in Central America" in Journal of Peace Research, (28:1, 1991). <http://jpr.sagepub.com/content/28/1/85.abstract>.

[19] Moore, 336.

[20] ibid., 337.

[21] "Meeting in the Middle: A Study of Solicitors' and Mediators' Divorce Practices."

[22] Guy Burgess and Heidi Burgess, "Advocacy Advisors and the Neutrality/Empowerment Problem," Conflict Research Consortium, University of Colorado. <http://www.colorado.edu/conflict/peace/example/burg7466.htm>.

[23] ibid.

[24] Benjamin.

[25] Gibson, Thompson, and Bazerman, 75.

[26] ibid., 72.

[27] Civil Rights Mediation Oral History Project, Conflict Management Initiatives and University of Colorado Conflict Research Consortium. <http://www.civilrightsmediation.org/>.


Use the following to cite this article:
Maiese, Michelle. "Neutrality." Beyond Intractability. Eds. Guy Burgess and Heidi Burgess. Conflict Information Consortium, University of Colorado, Boulder. Posted: June 2005 <http://www.beyondintractability.org/essay/neutrality>.

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