Mediator Neutrality: Making Sense of Theory and Practice

Social and Legal Studies, Vol. 16, No. 2, pp. 221-239, 2007

Sydney Law School Research Paper No. 07/46

19 Pages Posted: 5 Jul 2007  

Hilary Astor

The University of Sydney Law School

Abstract

The neutrality of a third party who decides or mediates disputes is central to our ideas of fairness and justice in western liberal democracies. The focus of this article is on neutrality in mediation. It argues that neutrality is even more important to the legitimacy of mediation than it is to the legitimacy of adjudication. But feminist and critical theories have demonstrated the impossibility of neutrality. Further, it is demonstrably absent in mediation practice and it conceals the operation of power in mediation. These flaws and contradictions of neutrality open mediation to constant destabilising internal dissent and external critique. Mediators face a conundrum - they cannot 'do' neutrality, nor can they do without it.

This article suggests a new approach to neutrality in mediation, which makes sense in practice and in theory. It provides for the inevitable situatedness of mediators and suggests principles to regulate their input into mediation. It suggests a method of practice that requires (rather than outlaws) attention to power relationships. These recommendations have implication for mediator practice, training, ethics, supervision and continuing education. Although directed to mediation, may of the arguments might fruitfully also be applied to adjudication.

Keywords: adjudication, mediation, neutrality

JEL Classification: K10, K30

Suggested Citation

Astor, Hilary, Mediator Neutrality: Making Sense of Theory and Practice. ; Sydney Law School Research Paper No. 07/46. Available at SSRN: https://ssrn.com/abstract=998202

Hilary Astor (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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