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Neutrality and Impartiality in the Mediation Process

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    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 is to be truly impartial, they are expected to restrict their actions to the facilitation of the parties’ agreement and not to offer opinions or advice while carefully estimating or watching for unequal power between the parties (Frenkel & Stark, 2008).

    On the contrary, a mediator may be required to add information, support or prompts (Taylor, 1997). Also, a mediator may need to empower a party involved in order to restore balance of power or status between all parties involved (Garcia, Vise, & Whitaker, 2002). This might be seen as a contradiction on the mediator’s behalf because they are supposed to remain impartial to all parties, but on the other hand they also have the responsibility to equalise power between all parties (Rifkin, Milin, & Cobb, 1991).

    A mediator may also be seen as unethical if he or she does not intervene in the process when they know one of the parties is making a choice that is not in their best interest (McCorkle, 2005). Another concern that may interfere with the mediation process may be the mediator’s life experiences and knowledge (McCorkle, 2005). This is seen as a possible obstacle and questions the mediator’s neutrality in regards to the topic of the dispute and personality style of the parties in dispute (McCorkle, 2005).

    Astor (2007) questions whether or not the mediator can keep their personal values out of the mediation process. This could be a concern especially if the mediation occurs in the workplace. If the mediator has a relationship with one of the parties involved or has an interest in the outcome, this may lead them to mediate in an unfair and biased manner (Van Gramberg & Teicher, 2006). Personal emotion is another characteristic that may interfere with the mediation process and affect neutrality.

    The emotions can either be that of the mediator or the disputants. In order to uncover any underlying issues, using a cautious approach, venting may be allowed at the beginning of the mediation session (Garcia, Vise, & Whitaker, 2002). To allow venting in the mediation process means risking the idea of impartiality because it may be seen as biased or unfair, hence the caution stipulation.

    As always, it is important for a mediator to review and examine each case to determine if there are any conflicts of interest, so that they are not emotionally affected by any issues raised during the mediation process, providing ample opportunity for neutrality and impartiality to work successfully (Taylor, 1997). If a mediator decides to use minimum intervention through the practice of a strict, neutral, facilitative stance, he or she would be seen as giving the opportunity to the disputant that has the greater power to negotiate a esolution that is best for their own interests (McCormick, 1997). Conversely, to ensure a fair and equal outcome for all parties involved, the mediator must possess a considerable amount of experience and practice before deciding to intervene in the mediation process (Bogdanoski, 2009). The mediator must also have the ability to identify imbalances of power which can elude even the most experienced mediator (Bogdanoski, 2009). Transformative mediation can be used as a strategy to counteract the power imbalance between parties.

    The transformative mediator may frequently intervene in the mediation process and encourage all parties to be aware of each other’s positions within the dispute (Baruch Bush & Folger, 1994). This in turn creates the opportunity for the parties to understand each other’s perspective, which can lead to the parties reaching a conflict resolution that is power balanced and morally accepted (Baruch Bush & Folger, 1994). This type of intervention is seen to be justified if the parties involved are too caught up in the conflict and are unable to see each other’s perspectives on the dispute (Baruch Bush & Folger, 1994).

    As a further strategy to counteract the power imbalance is narrative mediation, which is a mediation model based around the facilitative approach, mediator intervention is also used through a process of storytelling (Cobb, 1993). Through the use of narrative mediation, the mediator is able to recognise that when people talk, they express their deep underlying thoughts as well as what is being constructed within their world (Winslade & Monk, 2000).

    The role of narrative mediator is to help the parties involved to deconstruct their stories of conflict in order to reveal any underlying meanings which have lead to the overall development of the main conflict (Cobb, 1993). The process then continues by concentrating on weakening narratives of mutual blame and accusation which surface from these stories, and working towards the reconstruction of a more mutually accepted narrative that shifts the thinking of the parties from conflict to resolution (Charlton & Dewdney, 2004).

    The two models of transformative and narrative mediation stand out from the facilitative approach because the mediator’s interests are being added to the problem solving process along with the parties’ (Astor & Chinkin, 2002). This approach of interaction to manage the dispute with the parties involved certainly impacts the outcome and content of the dispute (Cobb, 2001). While transformative and narrative mediators recognise acknowledge this, facilitative mediators are more inclined not to acknowledge their impact on the mediation process, even if it is to a lower extent (Field, 2000).

    It is possible to maintain neutrality and impartiality however for this to be achieved the mediator must possess these two important qualities in order to be respected during the mediation process. It is difficult to conclude when a mediator should intervene or to what degree in any given dispute (Hung, 2002). The mediator has a code of ethics he or she must abide by, but the mediator must also be aware of his or her own values that might be brought in to the dispute resolution process (Hung, 2002). The mediator must also posses the necessary skills and ability to deal with ethical issues that may arise in any particular dispute.

    In order for the mediator to be viewed as neutral and impartial, he or she must gain the respect, trust of the parties involved through legitimate and credible understanding and care for the parties involved and the dispute at hand (Hung, 2002).

    References

    Astor, H. (2007). Mediator neutrality: Making sense of theory and practice. Social and Legal Studies, 16, 221-230. doi: 10. 1177/0964663907076531 Astor, H. , & Chinkin, C. (2002). Dispute resolution in Australia (2nd ed. ). Charlottesville, VA: Lexis Law Publishing. Baruch Bush, R. , & Folger, J. (1994). The promise of mediation: The transformative approach to conflict.

    San Francisco, CA: Jossey-Bass. Bogdanoski. T. (2009). The ‘neutral’ mediator’s perennial dilemma: To intervene or not to intervene?. Queensland University of Technology Law and Justice Journal, 9 (2): 26-43. Retrieved from: http://ssrn. com/abstract=1552691 Boulle, L. and Nesic, M. (2001). Mediation: Principles, process, practice. London: Butterworths. Charlton, R. , & Dewdney, M. (2004). The mediator’s handbook: Skills and strategies for practitioners (2nd ed. ). Sydney, AU: Law Book Co of Australasia. Cobb, S. (1993). Empowerment and mediation: A narrative perspective. Negotiation Journal, 9, 245-261. doi: 10. 111/j. 1571-9979. 1993. tb00706. x Cobb, S. (2001). Creating sacred space: Toward a second-generation dispute resolution practice. Fordham Urban Law Journal, 28 (4):1017-1031. Field, R. (2000). Neutrality and power: Myths and reality. ADR Bulletin, 3 (1), p. 16. Retrieved from: http://epublications. bond. edu. au/adr/vol3/iss1/4 Frenkel, D. , & Stark, J. H. (2008). The practice of mediation: A video-integrated text. Austin, TX: Aspen Publishers. Garcia, A. C. , Vise, K. , & Whitaker, S. P. (2002). Disputing neutrality: A case study of a bias complaint during mediation. Conflict Resolution Quarterly , 20 (2), 205-230. oi: 10. 1002/crq. 20 Hung, H. (2002). Neutrality and impartiality in mediation. ADR Bulletin, 5 (3). doi:http://epublications. bond. edu. au/adr/vol5/iss3/7 McCorkle, S. (2005). The murky world of mediation ethics: Neutrality, impartiality, and conflict of interest in state codes of conduct. Conflict Resolution Quarterly, 23 (2), 165-183. doi: 10. 1002/crq. 131 McCormick, M. (1997). Confronting social injustice as a mediator. Mediation Quarterly, 14 (4), 293. doi: 10. 1002/crq. 3900140404 Rifkin, J. , Milin, J. , & Cobb, S. (1991). Toward a new discourse for mediation: A critique of neutrality.

    Mediation Quarterly, 9 (2), 151-164. doi: 10. 1002/crq. 3900090206 Taylor, A. (1997). Concept of neutrality in family mediation: Contexts, ethics, influence, and transformative process. Mediation Quarterly 14 (3), 215–236. doi: 10. 1002/crq. 3900140306 Van-Gramberg, B. , & Teicher, J. (2006). Managing neutrality and impartiality in workplace conflict resolution: The dilemma of the HR manager. Asia Pacific Journal of Human Resources, 44 (2), 197-210. doi: 10. 1177/1038411106066396 Winslade, J. , & Monk, G. (2000). Narrative Mediation: A New Approach to Conflict Resolution. San Francisco, CA: Jossey-Bass.

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