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"But You Were Supposed to be Neutral!"

by Michael P. Carbone
April 2016

From Michael Carbone's Resolving It newsletter.

Michael P. Carbone
Mediators, like other dispute resolution professionals such as arbitrators and referees, are commonly referred to as "neutrals." This usage is one of those linguistic phenomena where an adjective can also be a noun. So what does it mean? Some typical definitions of the adjective "neutral" are a person, country, etc., that does not support either side of an argument, fight, war, etc or "not aligned with or supporting any side or position in a controversy." 
 
The use of the word "neutral" can create certain expectations. And so a question that must be addressed and resolved sooner or later by every mediator is: What does "neutrality" require of me with regard to my formation and use of opinions? We all form opinions, but then what do we do with them? Do we set them aside and act as if we really don't have them? If we happen to agree with one side or the other with regard to a particular issue, how does that affect our neutrality? 
 
The Model Standards of Conduct for Mediators is of considerable help to us in this area.  Thankfully they do not require that mediators be "neutral," nor do they even use the term "neutrality." Instead Standard II requires that mediators adhere to the standard of impartiality, which means "freedom from favoritism, bias or prejudice." 
 
No, this is not just hair splitting. Quite to the contrary. As I explain at the beginning of every mediation, neutrality pertains to positions taken by adversaries, while impartiality pertains to the mediator's attitude toward parties
 
The Task Force on Improving Mediation Quality, which was commissioned by the Section of Dispute Resolution of the American Bar Association in 2008, reported that one of the four essentials to high quality civil mediation practice is "analytical assistance" from the mediator. And one of the commonly accepted practices that is used in providing such assistance is an evaluation of the strengths and weaknesses of positions. 
 
At the same time however, mediators do not have a license to state their own opinions in a way that is coercive or unwelcome. We should be careful about forming firm and final opinions or letting ourselves be drawn into the conflict. Nor should we try to impose our own solutions on the parties.
 
To be both effective and impartial we should not think of ourselves primarily as case analysts. That is the role of a neutral evaluator rather than of a mediator. Instead we should stand ready to provide analytical assistance, in an impartial manner, as and when needed to facilitate the resolution of our clients' disputes.
 

Biography


MICHAEL P. CARBONE is a senior mediator who has also served as an arbitrator and court-appointed referee. His dispute resolution practice has been built over a period of more than 25 years and covers a wide range of fields.   His exceptional combination of transactional and litigation experience enables him to handle complex litigation and other challenging cases.  

Michael resolves business and commercial cases, real estate disputes, employment claims, construction claims and defect cases, estate and trust matters, insurance issues, legal malpractice, corporate and partnership disputes, and personal injury cases.  In his capacity as a court-appointed referee he has undertaken a wide variety of responsibilities, including sales and appraisals of real property, and the adjudication of trust accounting and administration matters.  

He is a member of numerous dispute resolution panels, including the National Panel of Arbitrators of the American Arbitration Association.  He is also listed on the mediation and discovery facilitation panels of several Superior Courts. 

He is a founder and past president of The Mediation Society, and a member of many other professional organizations, including the Academy of Court-Appointed Masters, the Dispute Resolution Section of the American Bar Association, and the Association of Business Trial Lawyers.

Michael is a frequent author and speaker on alternative dispute resolution issues.  He publishes a monthly newsletter entitled "Resolving It" which provides timely advice on strategies for successful mediation and discusses current issues, such as reforming the commercial arbitration process and mediating e-discovery.



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