Neutrality and Impartiality in Employment Mediation

Some Difficulties with the Concepts of Neutrality and Impartiality in Employment Mediation: Contrasted with an Ongoing Need(?) for Informed Consent to make it Fair.

Posted by Paul Kirkwood, director of www.MNCRS.co.uk – Mediation, Negotiation and Conflict Resolution Services.

Neutral: ‘taking neither side in dispute or difference of opinions; indifferent, impartial’.
Impartial: ‘not partial, unprejudiced, fair’ [1]

Seaman’s observation that ‘…Mediators should openly recognise the myth of neutrality and become sensitive to their position of effective authority vested in their quasi-professional status’ [2], drives right to the heart of the ethics of mediation and also to the role of the mediator. Every model of mediation has a different approach and answer to the question of what neutrality is and whether, and if so how, it should be practised. Many mediators have different definitions of what mediation is; and that although neutrality and impartiality are different, they overlap and are often conflated.

I will look at definitions of mediation, neutrality and impartiality; and then at different models of mediation and their approach to critical issues raised by Seaman’s observation.

Mediation definitions

Seaman notes that a report published by the Advisory, Conciliation and Arbitration Service (ACAS) and the Chartered Institute of Personnel and Development (CIPD) states that mediation ‘involves a neutral third party bringing two sides together with the aim of reaching a mutual agreement’ [3] and that the UK Centre for Effective Dispute Resolution (CEDR) defines mediation as ‘a flexible process conducted confidentially in which a neutral person actively assists parties in working towards a negotiated agreement of the dispute or difference, with the parties in ultimate control of the decision to settle and the terms of resolution’.[4] Seaman contrasts this with Moore’s definition of mediation as an ‘intervention in a negotiation or conflict of an acceptable third party who has limited or no authoritative decision-making power, who assists the involved parties to voluntarily reach a mutually acceptable settlement of the issues in dispute’.[5] Additionally, Kressel states: ‘mediation may be defined as a process in which disputants attempt to resolve their differences with the assistance of a third party whom they find acceptable’.[6]

The first two definitions identify the third party as neutral, the second two don’t. All identify the aim of the process as agreement, settlement or resolution.

Neutrality and Impartiality in Mediation

Weckstein observes: ‘“Impartiality” is distinguished from “neutrality”….(Impartiality)…refers to performing the mediation function, in word or deed, free from favouritism or bias, and for the purpose of aiding a resolution of the dispute and not to benefit a particular party…‘Neutrality’ refers to the mediator’s relationship, if any, with the disputants or the dispute. It seeks to avoid use of a mediator who, by reason of…relations with one or more of the parties, may be prejudiced or biased for or against a party. Neutrality incorporates concerns with any conflict of interest of the mediator.’[7]

Seaman on the other hand notes that ‘the concept of neutrality in mediation embraces two facets of the interaction between the mediator and the people seeking to resolve their conflict. Firstly, mediators endeavour not to favour the position of one party over the other. Thus, they remain impartial with respect each party. Secondly, they try not to influence the outcome of the mediation meeting and avoid the potential trap of prompting or leading a resolution of their own devising (which may or may not favour one of the parties). Any…solutions to the dispute…are…the sole preserve of the parties…mediators neither judge the parties nor influence the outcome of their decision.’[8]

Astor notes three aspects of neutrality. ‘First…the mediator does not influence the content or the outcome of the mediation…(he)…control(s)…the process…providing a procedural framework…within which…parties…decide what their dispute is about and how they wish to resolve it…(second)…the mediator is not partisan…he will treat the parties equally, not favouring one over the other…(and third)…mediators should not be influenced by financial or personal connection with the disputants, or be aware of prejudicial information about either (or both) of the parties.’ [9]

As Astor says ‘There is no consistency or agreement among mediators about how neutrality is defined: it is a highly debated and contested term.’[10]

Seaman is particularly critical of how facilitative mediation (FM) presents itself in theory, as being a neutral/impartial whilst in practice being highly interventionist in a workplace scenario.

Waldman, in defining a norm generating style of mediation (FM) describes the mediator as neutral and facilitative, not evaluative or directive. The parties themselves generate the norms by which they judge any agreement they enter into-these don’t come from the mediator or any other source.[11] However notwithstanding neutrality, the mediator stops personal attacks, assists an inarticulate party, constrains a loquacious party, seeks to correct power imbalances and practices agent of reality checks to parties that have unrealistic expectations; although he wouldn’t remove options identified by parties as possible solutions simply because they conflict with pre-existing social or legal norms.[12]

FM emphasises mediator neutrality (as to outcomes) and impartiality (as to disputants),[13] but, by implication, the mediator is judging parties and evaluating their disputes by correcting power imbalances and practising agent of reality checks.

Astor observes: ‘Many mediators are conscious of the problems of neutrality and its interaction with power…but they are in a double bind. They must assert neutrality…because the legitimacy of mediation depends upon it. Yet unless they overstep the boundaries of neutrality and intervene, they may perpetuate an injustice’.[14] She gives an example: Mulcahy’s study of community mediator handling of noise disputes between tenant neighbours. They informed neighbour disputees that their problems weren’t individual, but systemic caused by the nature of the buildings rented from the local authority, whose walls were so thin! They also assisted these disputees to pursue grievances against the local authority, thus breaching their own neutrality![15]

Mulcahy concludes that neutrality is unobtainable and undesirable in light of its tendency to protect the status quo, entrench inequality, and disempower vulnerable disadvantaged groups such as women or poor people (or employees?). She suggests that ‘the notion of partiality in dispute resolution reflects not only an empirical reality but an ideal to be aspired to in the interests of redressing imbalances’.[16]

Astor observes that for some mediators the solution ‘is to draw a distinction between neutrality and impartiality, to claim that mediators are not neutral but they are impartial…though it is conceded that mediators inevitably bring their own perspectives to mediation, it is asserted that they will nevertheless treat the parties equally.’ [17] But, asks Astor, how do you know you are treating both parties equally-through your own perspective and judgement (evaluation)? Equally, if you decide a power imbalance needs to be altered/equalised-what’s fair or equal about that; who makes that judgement? She concludes ‘Asserting impartiality as a solution merely cloaks the situatedness of the mediator and again conceals the operation of power’; hiding again the impossibility of either neutrality or impartiality.[18]

Seaman’s concern about the use of FM in employment mediation, ‘is based upon an assumption that the workplace mediator’s principal concern is to serve the needs of the organisational employees who find themselves in conflict’.[19] But, he says, the mediator serves both individuals in the conflict and the employer organisation/manager who commissioned him. He notes that the mediator gets paid by the employer organisation and therefore has an interest in succeeding. Additionally, in most definitions of mediation the target is reaching agreement and therefore this pressure ‘may subvert the primacy of…parties’ interest in finding their own solutions. Under a cloak of mythical neutrality, mediators may, knowingly (by deliberate manipulation of the FM process which they control)…or unwittingly (because neither the mediators nor parties actually realise neutrality is being breached and the mediator is devising solutions)….engineer a resolution to meet a perceived organisational requirement’ (viz settlement of the parties’ dispute).[20] The mediator’s ‘retaining control of process whilst holding to a drive for settlement would, on the surface, seem to lead…him…into a trap of evaluating the conflict situation…(and that as a result)…mediator’s conceptions of possible solutions can and do develop’, thus breaching neutrality.[21]

Seaman rejects, explicitly, Cloke’s suggestion that one should reject ‘simple notions of neutrality and mediator objectivity…(and instead suggests that)…the mediator should seek fairness through an omnipartiality, not siding with one party but supporting both simultaneously’,[22] because that confuses the mediator’s role of neutral non-intervention. Implicitly, for the same reason he rejects Mulcahy’s ideal of partiality, and Astor’s idea of abandoning the pretence of neutrality and ensuring that mediators should aim instead to maximise the control parties have over mediation.[23]

Instead Seaman suggests a model of mediation he calls ‘Explorative’.[24] This is a very subtle development of transformative mediation (TM) as defined by Bush and Folger (B & F).[25][26] TM is a ‘Relational’ type of mediation, as opposed to problem-solving FM type.

TM is widely practised in the USA, particularly in employment mediation, where it is the sole form of outside neutral mediation for the resolution of discrimination disputes arising from equal opportunity legislation between employees in the United States Postal Service (USPS).[27] It seems to be successful. It is voluntary for a complainant, but mandatory for the supervisor respondent who represents the USPS at any mediation.[28]

In TM the focus is not on resolving the dispute but on fixing parties’ relationships.[29] In TM, parties, not the mediator, control the process. They decide what to talk about and the mediator follows. The mediator must foster ‘empowerment’ of the parties. They become calmer, regain strength, recover control of their situation and are then able to give ‘recognition’ to the other parties’ perspective, needs and situation. Settlement although not the primary goal, may then result. Mediator evaluation of the merits of parties’ cases is not permitted and no opinion should be given re potential court outcomes. The mediator should make no settlement proposals-these should come from parties who should have maximum self-determination.[30] Mediators should not attempt to power balance between weaker and stronger parties.[31] Mediators who deviate from the TM model are weeded out mercilessly.[32] ‘Neutrality means that the mediator’s only interest is using his…influence to make sure that the parties maintain control of decisions about outcome’.[33]

It seems to me that becoming empowered through building strength and allowing self to give recognition to others is the only moral principle in TM. By B &F’s lights this allows proper self-determination. My concern, particularly in employment setting, is about imbalance of power, say between an employee and the manager. If there is no power balancing they could reach an unfair agreement; caused either by an abuse of power by the manager, or a lack of knowledge of legal rights by the employee. Whilst TM is the most neutral form of mediation, in preventing mediator intervention it comes close to a neutrality of nihilism and perpetuates inequality of arms between parties.

Notwithstanding my concerns it is clear that 96% of participants were satisfied with the mediator and 97% were satisfied or highly satisfied with mediator impartiality. Despite the lack of focus on agreement (enhancing mediator neutrality) 75% of participants confirmed their case was fully or partially settled by mediation.[34]

At the other end of the mediation continuum there are styles of mediation practised in an employment dispute setting which are more directive/evaluative, where the issue of neutrality is not such a concern.

Kressel[35] describes a model of strategic mediation (SM), where the mediator focuses on whether an underlying or latent cause has fuelled parties’ conflict. He indicates an initial diagnostic session where the mediator is strongly directive; parties tell their story in response to informed mediator questioning. Next, strategy formulation: the mediator shares his thinking about the conflict cause and advances a plan, respecting parties’ rights to modify or reject-unless there is little time for input. Finally, ‘the mediator engages in a highly directive orchestration of the problem-solving plan… although the strategic style is heavily dependent on establishing rapport, the approach is relatively unconstrained by concerns about neutrality’.[36] SM is heavily used in employee disputes at the National Institutes of Health in the USA. Kressel also identified a forerunner to SM attributed to Fran Butler-the Problem-Solving Style (PSS).[37] This began with ‘an initial period of intense question asking…the ‘interrogatory’ style. Using… (this)…PSS mediators appeared to be actively generating, testing, and refining hypotheses…about sources of conflict…The…result was…the mediator was ultimately able to present…parties with considered proposals for breaking impasses…parties were encouraged to react to and modify the…proposal in a…‘working through ’stage, with the mediator playing an active…directive role, while respecting…parties feelings and perspectives’ .[38] This is mediator assessment, evaluation and judging of parties disputes, with mediator generation of plans-a far cry from the neutrality some mediators hope for.

At the farthest end of the mediation continuum is full fat evaluative mediation (EM). This broadly follows the descriptive process in FM as exemplared by Kovach[39]. Where EM differs is in the view that it is important and a requirement for fairness to parties that they have full legal knowledge prior to reaching resolution of the dispute. For there to be true self-determination there has to be informed consent. This legal information/evaluation can come from parties’ lawyers, or (if the mediator is suitably legally qualified and has the relevant legal information) from the mediator.

FM protagonists Kovach and Love argue that the most important principle is party autonomy and self-determination and that if a mediator evaluates, this takes away decision-making responsibilities from parties and undermines their self-determination.[40] But Stark notes ‘Legal evaluation affirmatively facilitates the goal of party self-determination. Indeed, meaningful self-determination is not possible without adequate legal information’.[41] Hobgood, and other US labor mediators were informally evaluating parties’ chances in arbitration as a club to force parties to reconsider their options in mediation.[42]

It is significant that the Employment Relations Act 2000 in New Zealand provides that mediators may evaluate; express views on matters of substance and provide recommendations to parties.[43]

It is of interest that the Code of Professional Conduct of Family Mediation Canada provides under Article 9: Ensuring Fair Negotiations,1…(that)…‘While mediators must be impartial towards the participants, impartiality does not imply neutrality on the issue of fairness,’…(and)…4 ‘Although the mediator’s role is that of a facilitator and the primary responsibility for the resolution of the dispute rests with the parties, if the mediator finds an agreement or any part of it to be inherently unfair, he…is expected to indicate his…nonconcurrence to the parties’…(and)…5 ‘It is the duty of a mediator to actively encourage the participants to make decisions based on sufficient information, knowledge and advice.’[44]

Finally, as stated by James Stark ‘disputants must be permitted to invoke legal norms if they choose to, and the mediator must take steps to ensure that the parties’ choices are knowing and informed…Any threat to the appearance of neutrality and impartiality is a necessary price that mediators must pay for party empowerment and informed consent’.[45] Put another way, neutrality and impartiality are necessarily trumped by the need for party empowerment through informed consent, for mediation to be fair.

I think mediators do need to be sensitive of their power; and the essential thing they must do is be transparent with parties about how they conduct mediation. It should be acknowledged that neutrality is a myth, indeed it’s a red herring. Mediation can still respect self-determination and fairness without it.

[1] The Concise Oxford Dictionary 1982, seventh edition, 681, 501

[2] Roger Seaman 2016, Explorative Mediation Work: The Importance of Dialogue for Mediation Practice (London: Palgrave Macmillan).

[3] Ibid.2, quoting ACAS and the CIPD 2013, ‘Mediation: an approach to resolving workplace issues’. London. Retrieved from http://www.ACAS.org.uk/media/pdf/2/q/Mediation-an-approach-to-resolving-workplace issues.pdf

[4] Seaman (n2)3, quoting CEDR (2014). The Centre for Effective Dispute Resolution. Retrieved from http://www.cedr.com/solve/mediation/

[5] Ibid.3, quoting Moore C W 2003. The Mediation Process: Practical Strategies for Resolving Conflict (third Ed), 15, San Francisco: Jossey Bass

[6] Kressel K 2014, ‘The Mediation of Conflict, Context, Cognition, and Practice’, in The Handbook of Conflict Resolution, Theory and Practice, third edition, Jossey Bass, 817

[7] Weckstein DT 1997, ‘In Praise of Party Empowerment- And of Mediator Activism’, 501-564, 533 footnote 156

[8] Seaman (n2)4

[9] Hilary Astor 2007, ‘Mediator Neutrality: Making Sense of Theory and Practice’ Social and Legal Studies, 223

[10] Ibid223

[11] Ellen Waldman 1997, ‘Identifying the Role of Social Norms in Mediation: a Multiple Model Approach’ Hastings Law Journal, 703-770

[12] Ibid716-718

[13] Kressel (n6)833

[14] Astor (n9)226

[15] Linda Mulcahy 2001, ‘ The Possibility and Desirability of Mediator Neutrality: Towards an Ethic of Partiality’ Social and Legal Studies 10:505-527

[16] Ibid 514

[17] Astor (n9)227

[18] Ibid.227

[19] Seaman (n2)7

[20] Ibid.7

[21] Ibid.29

[22] Ibid.5, quoting Kenneth Cloke 2001, Mediating Dangerously: the Frontiers of Conflict Resolution. San Francisco: Jossey Bass,13

[23] Astor (n9)234

[24] Seaman (n2)

[25] Robert A Bush and Joseph P Folger 1994, The Promise of Mediation: Responding to Conflict through Empowerment and Recognition. San Francisco: Jossey Bass

[26] Robert A Bush and Joseph P Folger 2005, The Promise of Mediation: the Transformative Approach to Conflict. San Francisco: Jossey Bass

[27] Lisa B Bingham and David W Pitts 2002, ‘Highlights of Mediation Work: Studies of the National Redress Evaluation Project’ negotiation Journal 135-146

[28] Ibid.136

[29] Kimberlee K Kovach 2005, ‘Mediation’, The Handbook of Dispute Resolution (Ed) Michael L Moffitt and Robert C Bordone, Jossey Bass, 304-317, 310

[30] Bingham (n27) 137

[31] B & F (n26) 76

[32] Lisa B Bingham & Tina Nabatchi 2001, ‘Transformative Mediation In the US Postal Service Redress Program: Observations of ADR Specialists’, Hofstra Labour and Employment Journal, 18 (2), 399- 427

[33] Seaman (n2) 166, quoting B & F (n25) 105-is

[34] Bingham (n27) 138

[35] Kenneth Kressel 2007, ‘The Strategic Style in Mediation’ Conflict Resolution Quarterly, volume 24,no 3, 251-283

[36] Ibid. 255

[37] Kenneth Kressel 2013, ‘How Do Mediators Decide What to Do? Implicit Schemas of Practice and Mediator Decision-Making’ , Ohio State Journal of Dispute Resolution,vol 28, 709-775

[38] Ibid. 712-713

[39] Kovach (n29)

[40] Kimberlee K Kovach and Lela P Love 1996, ‘Evaluative Mediation Is an Oxymoron, 14 Alternatives to the High Cost of Litigation’31

[41] James H Stark 1997, ‘The Ethics of Mediation Evaluation: Some Troublesome Questions And Tentative Proposals, From an Evaluative Lawyer Mediator’, South Texas Law Review,vol 38, 769-799, 776

[42] Deborah M Kolb 2001, ‘William Hobgood ‘Conditioning’ parties in Labor Grievances’, in, When Talk Works: Profiles of Mediators, Jossey Bass, 149-189, 178-179

[43] Grant Morris 2015, ‘Eclecticism Versus Purity: Mediation Styles Used In New Zealand Employment Disputes’ Conflict Resolution Quarterly,vol 23, 203-227, 206, 207, 217

[44] Weckstein (n7)538, footnote 177

[45] James H Stark 1996, ‘Preliminary Reflections on the Establishment of a Mediation Clinic’,2 Clinical L. Rev., 457-503, 487

Written by Paul Kirkwood on 3rd April 2017. Paul is a director of MNCRS – Mediation, Negotiation and Conflict Resolution Services.

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