27 Jul 2016
Neutrality - core principle or principle hurdle
Neutrality is commonly cited as one of the fundamental principles of mediation. Indeed it’s often one of the key concerns for anybody who has had the responsibility for selecting a mediator. On paper, this principle seems a sound one – as a voluntary process the very success of mediation depends on all parties feeling comfortable that the mediator is there to facilitate the process in a fair impartial way. In practice however the pursuit of neutrality throws up a whole raft of issues.
What is neutrality and is it even possible?
Neutrality can be defined as:
“the state of not supporting or helping either side in a conflict, disagreement”
“absence of decided views, expression, or strong feeling”
Clearly for the purposes of conflict resolution, neutrality by its first definition would serve very little use. Imagine a mediator so neutral they give no support to either party lest they fail to adhere to the principle. Perhaps then the second definition of neutrality is more relevant to mediation? Perhaps. Except that whilst outwardly a mediator will aim to act in an impartial manner, it is simply impossible to expect them, as humans, to be completely detached from any views or feelings pertaining to the dispute or the parties.
Do parties really want neutrality?
It’s widely agreed that fundamental to the success of mediation is a skilled mediator who all parties equally can trust to deliver the process free from any predetermined bias or conflict of interest. Whilst there is certainly a line when it comes to being too evaluative, it is possible to apply different levels of neutrality to help facilitate the process and in many cases this is in fact what parties most value. Rather than taking an exactly equal approach to parties, mediators will make judgements about the approach and time each party may need, recognising and addressing differences or imbalances and managing needs and expectations.
Experienced mediators will likely “drop hints” about what they are thinking - many of these hints will however be subtle rather than blunt in terms of moving forward the conversation or negotiation. Indeed, the reality testing, challenging and coaching which are required to reach settlement almost always require the mediator to take and express a view or feeling in a way which supports one or more parties. The extent to which a mediator (who must be alert and conscious of this) can achieve this tailored approach with tact and delicacy at the most appropriate moment can directly contribute to successful settlement.
In CEDR’s 2016 Mediation Audit, mediators in the UK were asked about the approach that they adopted within mediation, whether they were more facilitative or more evaluative (where personal opinion may start to play a part). Most mediators said that they, to a greater or lesser extent, were between the two with a marked preference towards the facilitative end of the spectrum. Yet this did not match with what mediators believe that parties and their advisers expect them to be (based on what is said during mediations) – clearly they are looking for a more evaluative approach.
The audit report goes on to say, “Arguably this sort of pattern is what one might expect – mediators trained in a facilitative doctrine tend to favour that approach and start out using it, but many (although clearly not all) veer towards more evaluative strategies when the going gets tough.”
Is neutrality missing a trick?
Importantly, the concept of neutrality is a constructed one. If it is unhelpful for a mediator to not support either side and yet it’s impossible for them not to take a view, then the key really is for all parties to feel comfortable in sharing information and trust that the mediator will be able to work effectively with them towards an outcome which reflects their needs. In other words, the parties must perceive a necessary degree of fairness. Clearly in some circumstances managing the perception of ‘neutrality’ can be a real issue, to the point where it threatens the very possibility of mediation taking place.
For all mediators (but especially for organisations looking to develop in-house mediation) parties can often be distrustful of a mediator’s role, particularly when their ‘day job’ role is not perceived as a neutral one (e.g. due to background, seniority, department, function). However, if for the purposes of mediation neutrality isn’t derived from an actual, absolute absence of views but from the approach and skill with which a mediator facilitates the process then the scope for delivering successful internal mediations becomes much greater.
Rather than letting the issue of poor neutrality perception prove the ultimate stumbling block, successful organisations are building trust in their internal mediation process by developing a diverse pool of skilled mediators across the business (HR and Managers) and raising strong levels of awareness amongst all staff about what they can expect from their internal mediators and why it differs so much from ‘business as usual’.
Whilst at first seeming clear cut, Neutrality is, in reality, a complex spectrum which must be skilfully interpreted when applied to mediation.