Mediators often face questions about whether or not they acted neutrally during the mediation process. Clients are also concerned about their mediator’s neutrality, regardless of if they actually voice their concerns or not. In fact, some mediators becoming worried themselves if they think they are agreeing with one side. Mediators are often referred to as “neutrals,” but this is not the correct term to use for them. Neutrals is the term used to refer to evaluators, who are not the same as mediators. Mediators follow a different set of guidelines. The Model Standards of Conduct for Mediators helps answer many questions about a mediator’s role and can help mediators answer questions their client’s ask. If you take a close look at the Model Standards, the word “neutral” or the phrase “neutrality” are not mentioned. Standard II, however, does go into detail on the role of a mediator in relation to both of the parties. Standard II says mediators must be impartial, which means “freedom from favoritism, bias or prejudice.” This sounds similar to being neutral, but there is a difference.
While this may come as a surprise to some attorneys and clients, it is well known within the field of mediation that neutrality and impartiality are two different things. The word neutrality pertains to positions taken by adversaries, while the word impartiality pertains to the mediator’s attitude toward parties. The difference between these words may not seem huge, but this relieves mediator’s of the duty to be neutral. The American Bar Association commissioned a task force on improving mediation quality in 2008 and they found that “analytical assistance” from the mediator is one of the qualities of a successful mediation. This shows that even if the mediator is not completely neutral, his or her impartiality can serve as a tool during mediation. Mediators can also help their clients learn about the strengths and weaknesses of their cases both before and during mediation.
We hope this post has provided more information for our clients and other mediators about the role of a mediator. While he or she is not expected to be neutral, they are expected to be impartial. This is still a high standard for the mediator to meet. The mediation process is most likely to succeed if a mediator is effective and impartial. In order to fulfill this role, mediators need to stop thinking of themselves as primarily case analysts. Micheal Carbone, an experienced mediator, says mediators must “provide analytical assistance, in an impartial manner, as and when needed to facilitate the resolution of our clients’ disputes.”
Source referenced: Mediate