The Risks Of Neutrality - Reconsidering The Term And Concept


by Robert Benjamin

This article was previously published in the Ethics Forum, Mediation News, Summer 1998. Vol. 17, No. 3, pages 8-9. Copyright © 1998, Academy of Family Mediators

January 2001

Robert Benjamin

As mediators, we seem to be drawn to the word "neutral" as a descriptive term for what we do and as a conceptual frame for our professional role. The terms "neutral" and "neutrality" are peppered throughout our discussion of mediation in much of the literature, and in the standards of practice of many, if not most, professional mediation organizations, in court rules, and even in enabling legislation. AFM Standards encourage mediator "impartiality and neutrality" in Section IV, while the Society of Professionals in Dispute Resolution (SPIDR) makes ongoing reference to the role and responsibility of the "neutral," as a generic term to describe both mediators and arbitrators in their Standards.

Most experienced mediators learn early on that the ideal of remaining neutral is quickly battered when faced with the realities of effectively managing conflicts. Some have even reached the point of challenging the notion that neutrality is worthy of our aspirations as a goal at all. (See Gibson, K., Thompson, L. and Bazerman, M., "Shortcomings of Neutrality in Mediation," Negotiation Journal, Jan.1996.)

Beyond the theoretical discussion, however, there are some very practical risks for mediators to consider in continuing to describe themselves as neutrals. Specifically, a disproportionate number of grievances against mediators are based in the claim that the mediator did not appear to act, or in fact act in a neutral manner. This raises the problematic situation that while the mediator may believe he or she is clear as to meaning of neutrality, the parties are not nearly as clear. Deborah Kolb, in When Talk Works (1994), has catalogued the disparity between what mediators purport to say they do and how they in fact practice. In short, 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.

This becomes more than a mere semantics discussion because, when the mediator has been perceived to have been more attentive to one party than the other at a particular point in the mediation process, that extra attention is often viewed by the other party as partiality. This can easily become the source of a formal grievance. Most mediators appreciate that, in order to develop the requisite level of trust with each party, they must engage and validate the perspective of each disputant. Some mediators resist validating a client's thinking for fear that it will be taken or understood as agreeing with him or her and is considered inconsistent with neutrality. There are many examples of mediator technique and strategy which are clearly useful, but are nonetheless construed by clients as contravening neutrality and therefore suspicious, if not unethical. The caucus (meeting with each party separately) can be precarious, especially for the self-described neutral mediator. Asking reflective questions that probe the efficacy of one or the other of the parties' negotiation perspective can be likewise difficult. While a judge can and perhaps should remain "above the fray," distant, poker-faced and neutral, a mediator has no such luxury available to him or her. In fact, the mediator may have a duty to question each party about their respective perspectives, raise concerns and anticipate unintended consequences implicit in a potential course of action in order to assure that the parties' understandings and agreements are informed and consensual. It is just these sorts of issues that constitute the bulk of grievances against mediators.

Neutrality has many and varied meanings, and therein lies the difficulty. It refers both to the role of the mediator and how he or she will supposedly act. In the classic sense of the term "neutral," the mediator: (1) will not intervene in the substance of the dispute; (2) is indifferent to the welfare of the clients; (3) has no previous or present relationship with the parties outside of the mediation; (4) will not attempt to alter perceived power balance variances; (5) is disinterested in the outcome; and (6) is unconcerned with the impact of the settlement on unrepresented parties (Gibson, K.). Sarah Cobb and Janet Rifkin in "Practice and Paradox: Deconstructing Neutrality in Mediation", Law and Social Inquiry, (vol. 16, 1991), have noted that there are at least three different conceptions of neutrality at work in mediation and that the rhetoric of neutrality reinforces assumptions that are widely held but not made explicit or clear. The ambiguity of the term is even more confusing for clients in conflict, many of whom come to mediation with the preconceived notion that a mediator is or should be just like a judge. No amount of explanation may be sufficient to dislodge their notions and clarify the ambiguity. What is more, the clients' misconstruction of the mediator's role is reinforced and further confused by the use of the term "neutral. "

The term "neutral" is attractive because it is anchored in our techno-rational belief system and derived from methods of scientific inquiry. In that sense it is culturally linked-we want to think that if the mediator is neutral and disengaged, he or she will be more objective, rational, dispassionate and unbiased. Etymologically, the origins of the word "neutral" is from neuter-being neither active or passive, nor disengaged. The opposite of "neutral" is not "partial" or "partisan," but rather, "involved" or "engaged." A car in neutral goes nowhere, the power of the engine is not transmitted to the gears. For the mediator to present him or herself as neutral may lead to faulty assumptions by the mediator which lead to the misunderstandings of the mediator's role by the clients. (Benjamin, R. D. "The Physics of Mediation: Reflections of Scientific Theory in Professional Mediation Practice," Mediation Quarterly, vol. 8, 1990). In many other cultures, the last person people want to help them settle their conflict is a remote, unfamiliar neutral. Even in our own culture, parties in conflict may think they want a neutral, but when questioned, they are really looking for a third party who will hear and validate their concerns. Perhaps too many mediators seize upon neutrality as a role descriptor because the term is convenient and familiar-it is a kind of shorthand to explain a complex activity.

However, the risks of what the term "neutral" sets up in clients' thinking about the mediator role outweigh the usefulness of the word, even as shorthand. "Impartial' is an alternative descriptor, but perhaps still suffers from sounding distant and detached. Another more dynamic term to describe the mediator's role that is increasing in popularity is "balanced." In contrast to the more static neutral mediator, who has no responsibility to protect either party, a balanced mediator has the responsibility to protect both parties. In being balanced, the mediator has permission to question both parties about their negotiating perspectives and inquire about any circumstance or matter germane to an effective, resilient agreement. In short, a mediator is not hog-tied and bound by the traditional narrow role limitations of a neutral. Most importantly, in avoiding the confusion surrounding the meaning of neutrality, the mediator runs less risk of client misunderstanding and a potential grievance.

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Biography




Robert Benjamin, M.S.W., J.D., has been a practicing mediator since 1979, working in most dispute contexts including: business/civil, family/divorce, employment, and health care. A lawyer and social worker by training, he practiced law for over 25 years and now teaches and presents professional negotiation, mediation, and conflict management seminars and training courses nationally and internationally. He is a standing Adjunct Professor at the Straus Institute for Conflict Resolution of the Pepperdine University School of Law, at Southern Methodist University’s Program on Conflict Resolution and in several other schools and universities. He is a past President of the Academy of Family Mediators, a Practitioner Member of the Association for Conflict Resolution, and the American Bar Association’s Section on Dispute Resolution. He is the author of numerous book contributions and articles, including “The Mediator As Trickster,” “Guerilla Negotiation,” and “The Beauty of Conflict,” and is a Senior Editor and regular columnist for Mediate.com.



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