The Myth of Mediator Neutrality
BY PROF BARNEY JORDAAN
What if mediator neutrality isn’t as clear-cut as it seems? This in-depth article by mediator and lawyer Professor Barney Jordaan questions the conventional wisdom, inviting us to consider if mediator neutrality might be more complex than we think. As the landscape of dispute resolution evolves, delve into Jordaan’s thoughts on reshaping mediation training and practice for greater flexibility and effectiveness.
Disputes consist of three dimensions, i.e., a people (or relational), process and problem (substance or merits) dimension. A perennial question in mediation literature is to what extent mediators should concern themselves with the substance of a dispute. Conventional wisdom goes something like this: unlike judges and arbitrators, mediators are ‘neutrals’ who do not decide the merits of a dispute. Their role is largely limited to managing the process and addressing any relational, emotional, behavioural, and communication difficulties that might arise. While some involvement with the problem dimension is generally foreseen, there is no unanimity about how far a mediator may go. Certain practice styles (mediation models or) philosophies have developed over the years that largely determine the extent to which a mediator would be prepared to go. Sometimes the choice is not up to the mediator but is provided for in a country’s statutory mediation regime. In Belgium, for example, the facilitative model, with its attendant notion of mediator neutrality, has found expression in the formal regulatory framework for mediation.
Mediation models aren’t simply frameworks to guide mediators in what they are permitted to do and what not. They also become embedded as ‘mental models’ (or schemas) that ultimately determine what ideas a mediator holds about her role, the goals to be attained (or avoided) during the process, and the interventions that she is allowed (or not allowed) to make in striving to help disputing parties reach an agreed solution to their dispute. These mental models have been referred to as ‘mediator coping responses to the complex and demanding task of intervention decision making and the limitations of formal models of practice and conscious human deliberation.’ Once established, mental models can be difficult to change.
This ‘embedding’ process begins with mediator training. Speaking from my own experience, the typical mediator training course – at least in the context of civil and commercial disputes – uses the facilitative model to train aspirant mediators. Unless they have opportunities to develop their mediation skills beyond a training course and be put to the test about the limits of that model, there is a very real danger that they might end up believing that it is the only one or, worse, that it is superior to any other approach.
However, the world of dispute resolution has changed since the models were first proposed several decades ago. We cannot, as mediators, trainers or regulators, continue to cling to models and ways of thinking about mediation that have not evolved to keep pace with these developments, that are out of touch with what experienced mediators do in practice and that do not deliver on the ultimate promise of mediation, which is to improve access to justice. Instead of continuing to fit a dispute into the straitjacket of a particular model (‘fitting the problem to the process’), we need to help mediators realise that – but for statutory straitjackets – they have scope to ‘fit the process to the problem.’ Instead of limiting the role of the mediator to facilitating the process and helping the parties overcome any barriers to effective communication while treading softly around substantive issues, we need to recognise that for mediation to deliver justice to the parties, mediators should be able to play a role in respect of all the dimensions of a dispute if that is what is needed to bring it to finality.