Just how important is neutrality in mediation?

Issue March/April 2018 April 2018 By Jeanne Kempthorne
Dispute Resolution Section Review

For the past 20 years, at least, commentators have questioned the ability of the United States to act as an “honest broker” between Israel and its various conflict partners in the Middle East, given its longstanding special relationship with Israel. The question was raised again with urgency after the United States moved its embassy to Jerusalem in December 2017. Like many, Columbia University professor Rashid Khalid argued that, “It is time to get away from the idea that Israel’s most fervently partisan supporter and supplier of money and arms can be a mediator. The United States is not neutral: It is a party to this conflict, fully on the side of Israel.”

Much closer to home, Lawrence Susskind, of the Consensus Building Institute at MIT, argued in his keynote speech at the New England Association for Conflict Resolution Biennial Conference last September that maintaining mediator neutrality requires “absolute diligence” and that, even in troubled times like these, neutrals should avoid political or issue activism in order to preserve “neutrality” so as to be “available” to serve as a mediator if the occasion arises. Professor Susskind, as many of us in attendance interpreted his remarks, was not advocating not having views on controversial issues; rather, he counseled against making those views public. This idea proved extremely provocative at the conference, and I confess to being among those who questioned Professor Susskind’s thesis. Do we really need to pretend to have no opinions on important public issues in order to enter the fray as a neutral? How far does this reasoning go? Should we abstain from voting? From contributing to non-profits that lobby for change?

The United States’ role in “mediating” many conflicts around the world, when it is in fact a stakeholder with decided views on acceptable outcomes and the ability and willingness to strong-arm and punish recalcitrant parties to the conflict, surely challenges any ordinary notion of neutrality. On the other hand, Professor Susskind’s model of the neutral as a political renunciate, silent on the pressing public issues of the day lest he be disqualified from acting as a mediator in an as-yet inchoate dispute, lies on the other end of the spectrum, as he himself acknowledged in his remarks.

Surely, whether a mediator may express views on controversial subjects and take action in support of those views, and nonetheless remain effective as a neutral, depends on the immediacy of the connection between the public statements and actions, on the one hand, and the conflict, on the other. 

Mediator neutrality, one of the four defining ground rules of mediation, along with voluntariness, self-determination, and confidentiality, turns out to be a rather intractable concept and shape-shifting in practice. This is due, in large measure, to the fact that mediators routinely speak privately with each party, and communicate messages from one to another. As scholars have noted, private caucus by its nature strains neutrality. So does an evaluative, reality-testing stance. How far can a mediator go in “trashing and bashing” the merits of one party’s case, even privately, without compromising neutrality? Mediators struggling with the concept try to refine the argot, substituting “impartiality” or even “multi-impartiality” for “neutrality.” Or they fiddle with the construct for the proceeding: not quite a mediation, but rather a “conciliation” or a “case evaluation.” Clarifying language helps to clarify concepts, but, judging from the persistence of controversy among thoughtful and reasonable practitioners about its appropriate strictures and limits, the concept of mediator neutrality resists easy reduction.

Standing on the sidelines, silent on the critical public issues of the day, issues one cares deeply about, is not true neutrality, of course. It is a facade of neutrality. One must ask: Is it ethical to maintain a false facade of neutrality on public issues so that the parties do not look elsewhere for a mediator? Should there be a requirement of disclosure in such circumstances? When would the duty to disclose arise? Or, does the requirement of neutrality, if it means anything, require a person with strong views on the merits of the dispute to decline to serve as a neutral? Easily said, but such a strict rule would rule out a mediator whose knowledge and experience in the substantive area and the history of the conflict could prove helpful in moving the dialogue towards a rapprochement. 

Another sort of bias receives less critical attention, but can have a huge impact on the dynamic of the negotiations and the effectiveness of the mediator: the bias in favor of settlement. A neutral’s push to achieve settlement may distinctly favor one party over another whose interests may best be served by not settling — for example, in cases where one party’s claims have no merit, or where reputational interests may be paramount, or where because significant stakeholders are not at the table, any settlement would prove inconclusive or worse. As Padraig O’Malley, University of Massachusetts professor and founder of the Forum of Cities in Transition, asks in The Peacemaker, the powerful documentary about his life and work, why should he push resolution if the parties themselves do not want resolution?

Most of the time, the bias towards settlement aligns with the parties’ expectations and hopes. After all, the reason the parties have engaged a mediator, usually, is that they share a desire to end the dispute. But not always. In court-ordered conciliations and other contexts where the participation of the parties is not truly voluntary, one or both of the parties may not be all that interested in resolution. They may have other objectives and interests, which the mediator or conciliator must discern and respect. In my experience, this principle has been given short shrift in training for court conciliators, who are taught, like a mantra, that their job is to settle cases. 

All of this begs the question: What is the purpose of mediator neutrality? What sort of neutrality is really required? I think the answer is highly dependent on context and the expectations of the parties.

Clearly, the need for mediator neutrality is not as acute or sensitive as for arbitrators or judges. There is a gaping chasm between helping the parties come to agreement and deciding the dispute for them. Because judicial and arbitration decisions are all but final, it is imperative that judges and arbitrators not only disclose all potential biases and financial interests, but also abstain from deciding matters where such biases and financial interests are lurking. Needless to say, ex parte contact between the parties and an arbitrator or judge is universally considered inconsistent with neutrality and is appropriately forbidden.

In mediation, the situation is different. Because the parties themselves will devise an agreement (or not), rigid adherence to familiar notions of judicial or arbitral neutrality is unnecessary and should not be ethically required. Notably, one-sided communications between one party and the mediator are par for the course and are entirely proper — even though they may give rise to serious doubt in the minds of the excluded party, a doubt that an alert mediator must recognize and address.

In the view of process-oriented mediators, the fundamental value of mediation is to provide a space for the parties to come together. Veteran family mediator John Fiske espouses this view: “[The most important thing] we do is give people a place to talk.” He questions the need for neutrality. Citing Bernard S. Mayer’s book, Beyond Neutrality: Confronting the Crisis in Conflict Resolution, he points to the village elder as mediator: “It’s a totally different model. The parties seek out someone who is wise, not neutral.” Trust, in his view, is key: “If you connect with the parties, they are going to trust you.”

It seems to me that he is right. Strict neutrality is not essential to the integrity of the process, so long as the parties are able to advance their own interests and do not rely on the mediator to evaluate or reframe communications. The pertinent questions, I suggest, are whether the mediator’s bias, or prior relationship with a party or its counsel, or her interest in the outcome either (1) affects the parties’ ability or willingness to engage in the settlement process, or (2) affects the mediator’s even-handedness in conveying information, evaluating the risks of non-settlement (if applicable), and transmitting offers. 

More succinctly: Is the mediator in fact trustworthy? Can she be trusted not to betray one side’s confidences to the other side? Can she be trusted not to weigh in, favoring one side? And is she perceived to be trustworthy by all parties? 

Circumstances and conduct, both outside and inside the process, can affect trust, but conduct during the proceeding is key to the parties’ perception of impartiality: how the mediator allots time between the parties; how well the mediator listens; how engaged the mediator is in understanding the parties’ interests, emotions, and story; and how fairly and accurately the mediator acknowledges and reframes the parties’ presentations. 

The parties’ evaluation of the mediator’s trustworthiness continues throughout the proceeding. It isn’t a hurdle cleared at the outset and then left behind as the parties proceed down the course. It’s a touchstone that the parties come back to over and over again. Trustworthiness is always in play, always being adjusted throughout each public and private interaction throughout the mediation. And not just the parties. The mediator, too, must be constantly alert to whether the dispute or the dynamic is pushing buttons that trigger an emotional or other response jeopardizing the mediator’s ability to function as a disinterested neutral. 

When, if ever, should the mediator disclose her bias or interest in the outcome? In practice, I suspect that disclosure is usually limited to prior contacts with counsel or a party. Beyond that limited sort of disclosure, I tend to think the less said the better. So long as the mediator is able to maintain the discipline of neutrality in practice: to faithfully adhere to promises of confidentiality, to treat each party and counsel with respect, to listen carefully with both discernment and empathy, and not to advocate for an outcome favorable to one side over the other, her personal opinions, in my view, are her private affair. If those opinions begin to surface in unacceptable ways, the parties themselves can take corrective action by withdrawing from the process. If the mediator’s subjective ability to perform her role is affected, she can and should take a break and re-center or withdraw. 

Whether the United States was ever “neutral” with respect to conflict in the Middle East is doubtful, of course, but it might nonetheless have served as an effective facilitator, notwithstanding its obvious stake in the outcome and its bias toward resolution. But now, having handed Israel a clear win on an issue that was vitally important to both sides, the United States has compromised its stature, not as a disinterested neutral — it was never that — but as a trustworthy participant in the peacemaking process.