The ‘Neutral’ Mediator's Perennial Dilemma: To Intervene or Not to Intervene?

Queensland University of Technology Law and Justice Journal, Vol. 9, No. 1, pp. 26-43, 2009

18 Pages Posted: 26 May 2010 Last revised: 14 Sep 2011

Tony Bogdanoski

The University of Sydney Law School

Date Written: 2009

Abstract

This article explores the vexed question of whether or not a mediator’s intervention in the power relations of the disputants should be considered a sign of the mediator’s departure from their neutral role in the process. It argues that such intervention should not be seen as automatically breaching the mediator’s ‘neutral’ role because neutrality and power can only be appreciated as situated rather than fixed terms. By thinking of neutrality and power in this more nuanced manner, their meaning shifts from being understood in an absolute or universal sense to being dependent upon the individual parties and circumstances of the dispute. Such a conceptualization of neutrality, influenced by postmodernism, would also give rise to the possibility of multiple meanings and truths being ascribed to the state of being ‘neutral’. The result of this is to open up a space for the mediator to legitimately intervene in the process to avert or subvert what the mediator sees as a potentially unfair process for one or more of the parties without the mediator necessarily relinquishing their neutral status.

Suggested Citation

Bogdanoski, Tony, The ‘Neutral’ Mediator's Perennial Dilemma: To Intervene or Not to Intervene? (2009). Queensland University of Technology Law and Justice Journal, Vol. 9, No. 1, pp. 26-43, 2009. Available at SSRN: https://ssrn.com/abstract=1552691

Tony Bogdanoski (Contact Author)

The University of Sydney Law School ( email )

New Law Building, F10
The University of Sydney
Sydney, NSW 2006
Australia

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