Mediator Neutrality: Making Sense of Theory and Practice
The University of Sydney Law School
Social and Legal Studies, Vol. 16, No. 2, pp. 221-239, 2007
Sydney Law School Research Paper No. 07/46
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.
Number of Pages in PDF File: 19
Keywords: adjudication, mediation, neutrality
JEL Classification: K10, K30
Date posted: July 5, 2007