by Dr Aonghus Cheevers
What is neutrality and how can we tell if a person, especially someone involved in a dispute resolution process, is acting neutrally? For most people, these are probably not questions that they spend a lot of time worrying about. For the people who avail of legal processes, though, they are very important. This group includes people who practice and use mediation, where the neutrality of a mediator can affect how the process works and how people experience mediation. My recently published article in the Conflict Resolution Quarterly discusses these questions by examining how clients and mediators discuss neutrality.
What is mediation?
Mediation is a non-adversarial dispute resolution process used in courts in many jurisdictions. In the United States, mediation has been used since the 1960s and 1970s to resolve community disputes (between neighbours); family disputes (between partners or other family members); and commercial disputes (either between businesses or between businesses and their customers). Mediation is also used in many other countries, including the United Kingdom, Australia, and the members of the European Union to resolve a range of disputes.
Although used in different places and for different purposes, supporters of mediation tend to highlight certain principles that underpin the process. Mediation is often described as a voluntary and confidential process, where the neutrality of the mediator helps people to resolve their disputes on terms that they—rather than a judge—decide. By focusing on three principles (voluntarism, confidentiality, and neutrality), mediators, lawyers and other stakeholders help to differentiate mediation from litigation. The principles also describe mediation and can help to make mediation effective. Article 3 of the 2008 EU Directive on Mediation in Civil and Commercial Matters, for example, uses these concepts to define mediation as:
a structured process, however named or referred to, whereby two or more parties to a dispute attempt by themselves, on a voluntary basis, to reach an agreement on the settlement of their dispute with the assistance of a mediator.1
The same document defines a mediator as a person who conducts, “mediation in an effective, impartial and competent way…”.2 In Article 7, the confidentiality of the process is discussed and protected.
How do the principles affect mediation?
These three concepts (voluntarism, confidentiality, and neutrality) influence the mediation process in many ways. By choosing to enter the process, people are making a conscious decision to agree to try and resolve their dispute. The thinking, often voiced by supporters of mediation, is that this will make any settlement stronger. Confidentiality aids this process, by helping people to freely express their views and opinions. The knowledge that anything they say cannot be used in a subsequent court case, means that they can discuss their dispute and address issues that they might otherwise want to keep secret. Finally, the neutrality of the mediator ensures that the process is fair, with each side being allowed to give their side of the story and do so without being pressurized.
This, at least, is the theory. In practice, the way that voluntarism, confidentiality, and neutrality operate is more complex. Neutrality raises questions around the proper role of the mediator and whether it is possible for a mediator to take part in a process without impacting it in some way.3 If a mediator focuses on neutrality, without ensuring that the parties are negotiating on the same level, this could hurt some of the people using mediation. Wing showed how this was particularly true for people who tried to tell a story that did not conform to a “master narrative”.4
Neutrality discussed and defined in interviews
My article examines some of these earlier claims, by analyzing how mediators and the people using mediation discuss neutrality. Using data collected by the Family Mediation Service and the author, the paper shows how both groups are aware of, and highlight, the effect of neutrality. The paper also adds to the existing literature by showing that the influence of neutrality on the mediation process is discussed by both groups in different ways.
Mediators regularly discussed mediation using the principles that are often identified as underpinning the process (voluntarism, neutrality, and confidentiality). They used these principles to show how mediation is different from litigation and the advantages that it can provide for clients resolving disputes. These clients, although they recognized the influence of neutrality, approached the discussion differently. They focused on whether mediation helped them to resolve their dispute. This meant that client comments were framed by effectiveness. Neutrality was useful when it helped to resolve a dispute.
This occurred in different ways. Clients discussed how the neutral actions of the mediator helped the clients to communicate more clearly. This helped the clients to resolve their dispute. One client noted that mediation, “[h]elped to see both sides of the discussions.”5 Other clients showed how the neutrality of their mediator helped to build a rapport between the clients and the mediator. A female client, who attended mediation in Castlebar, stressed how the mediator had been, “extremely helpful, mindful of our circumstances and we were both listened to”.6 Along the same line, sometimes clients outlined how a mediator had supported them through the process. For these clients, this supportive role helped the client to overcome their fears about mediation and to rebalance the power dynamics between the parties.
All these positive comments about mediators and the mediation process were influenced by an effectiveness assessment. If the process was effective, clients could look at how their mediation operated. Was the mediator neutral, what effect did this have on the process? etc. If the clients were not able to resolve their dispute they spoke about how the impact of neutrality on the mediation process differently. Sometimes this happened because the mediator was too neutral. Clients identified mediators who failed to make another party, who was unwilling to take part in mediation, contribute to the process. If the mediator failed to make the party listen etc., the clients identified that this happened. Sometimes clients had the opposite view of the mediator. These people felt that their mediator was not neutral. They discussed mediators who did not protect them when they felt bullied by the opposing party or who they felt supported the other party.
For clients and mediators, neutrality was a concept that influenced mediation and their experience of the process. Especially for clients, though, neutrality and the other principles of mediation were important because they helped to make mediation effective. By looking at what both groups said, this paper adds to our understanding of how neutrality affects and influences mediation and offers a valuable insight into the lived experience of the people using mediation.
 Directive 2008/52/EC, art 3(a)
 Directive 2008/52/EC, art 3(b).
 See, for example, Bernard Mayer, ‘What We Talk About When We Talk About Neutrality: A Commentary on the Susskind-Stuhlberg Debate’, 2011 Edition’ (2011) 95 Marquette Law Review 859; Bernard Mayer, ‘Panel discussion: Core values of dispute resolution: Is neutrality necessary’ (2011) 95 Marquette Law Review 805; Sara Cobb & Janet Rifkin, ‘Practice and paradox: Deconstructing neutrality in mediation’ (1991) 16(1) Law and Social Inquiry 35.
 Leah Wing, ‘Whither Neutrality? Mediation in the 21st Century’ in Mary Adams Trujillo, S. Y. Bowland, Phillip M Richards and Linda James Meyers (Eds.), Recentering: Culture and knowledge in conflict resolution practice (Syracuse University Press 2008).
 Ath-11006, 2010
 Cas-11203, 2013
Dr Aonghus Cheevers is Assistant Professor of Private Law at the School of Law and Government, DCU