The Importance Of Neutrality Of Third Parties In Dispute Resolution (Term Paper Sample)

THE IMPORTANCE OF NEUTRALITY OF THIRD PARTIES IN DISPUTE RESOLUTION
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THE IMPORTANCE OF NEUTRALITY OF THIRD PARTIES IN DISPUTE RESOLUTION
Introduction
Neutrality is a principle of alternative dispute resolution which has been subject to numerous interpretations by scholars. It generally implies that a mediator must not have any vested interest in the projected outcome of the mediation. The classical conception of neutrality requires that the third party in alternative dispute resolution is powerless with respect to the final verdict of the resolution process. However, it is noteworthy that mediators wield massive power that can essentially influence the final settlement of the dispute. Given their unfettered access to confidential information which can shift the balance of the dispute either way; it is incumbent upon them to ensure that they do not have any hidden interests in the final decision about the matter so as not to jeopardize the trust that disputants have in them. In recent discourse, there has emerged a conflict between observing utmost neutrality at the expense of crafting a just resolution by intervening in the dispute. This paper asserts that neutrality is not an important tool in dispute resolution. Instead, it further posits that mediators should exhibit extreme impartiality and shun bias but at the same time make any necessary interventions that would occasion a just outcome from the dispute resolution process. I will also go ahead to illustrate how mediators can conduct themselves so as to be perceived as neutral while still adopting this postmodern model.[Kishore Shiyam, ‘The Evolving Concepts of Neutrality and Impartiality in Mediation’, (2006) 32 COMMW. L. BULL. 221, 222.] [Esquibel Amanda K, ‘The Case Of The Conflicted Mediator: An Argument For Liability And Against Immunity’, (1999-2000) 31 RUTGERS L.J. 131, 137.]
Is Neutrality important in Dispute Resolution?
The meaning(s) of Neutrality
Neutrality as a principle and practice entails six major elements that according to many scholars, ought to be exhibited by third parties. The first one is that a mediator should not intervene in the substantive issues raised in the course of the dispute. While mediators have the mandate of discussing with disputant parties and persuade them to soften their demands, it is advisable that this interaction does not encroach into the substance of the dispute. Secondly, the mediator is supposed to be indifferent to the interests and welfare of the clients which have been made known to the mediators. This actually guarantees impartial treatment of all the parties to the dispute. Also, neutrality requires that a mediator must not have had any previous interaction or relations with the parties in a manner that is not related to mediation. The existence of such prior engagements affects the objective mindset of the mediator and it might influence them into being too harsh or too soft to one party.[Benjamin Robert D., ‘The Risks of Neutrality – Reconsidering the Term and Concept’, (1998) ETHICS FORUM, MEDIATION NEWS, Vol. 17, No. 3, at pp 8-9.]
Fourthly, a mediator should not make any moves that would technically tilt the power balance as depicted by the nature of the dispute. These machinations could entail leaking the arguments of a party to their adversary or preparing them for a counterargument. The fifth point is that a mediator must at all times not have a favorable outcome from their point of view. This is because if they are desirous of a certain outcome they may find themselves not being neutral to all parties. Finally, aside from not caring about the impact of the outcome to parties subject to the mediation; the mediator must also show no interest at all in the protracted impact of the outcome of a dispute to unrepresented parties. These core requirements are very stringent on the flexibility of mediators and can thus impede genuine processes put in place to craft a good solution for the dispute.
Arguments against Neutrality
Here is a detailed explanation of why neutrality is not essential as often portrayed in alternative dispute resolution. There are four major models of mediation under which the concept of neutrality can be thoroughly examined. In the strictest sense Neutrality is a term often associated with classical facilitative mediation in which the mediator is bound by a chain of rules that do not anticipate any form of advisory and counselling tasks for the mediator with respect to the content of the dispute. The second model is evaluative mediation in which the mediator is tasked with offering advice to both parties to the dispute about the merits of their case and the possible outcome should the dispute escalate to the court. The third model is narrative mediation whereby the mediator listens to narratives from both sides of the divide and ends up helping to create a middle ground narrative which is taken as a solution. The last one is transformative mediation whose main objective is to transform the relationship between parties which are subject to the mediation process. A strict look at all these models depicts that only facilitative mediation requires that the mediator maintains strict neutrality while handling the content of a dispute. It has been ascertained that transformative mediation is the most potent model of the four; therefore absolute neutrality is not the guarantee to good resolutions.[Alfini James, ‘Evaluative v Facilitative Mediation: A Discussion’, (1997) Florida State University Law Review 919.] [Winslade William J and Monk Gregory, Narrative Mediation: A New Approach to Conflict Resolution (Jossey-Bass, 2000).] [Bush Robert Baruch and Folger Joseph, The Promise of Mediation: The Transformative Approach to Conflict, (Jossey-Bass, 1999).]
The facilitative mediation model’s approach to neutrality is extremely flawed and fallacious because its protracted end cannot be achieved. This is because it assumes that a mediator can partake in the process without necessarily having any impact on it aside from guiding the nature of mediation proceedings. The truth is that it is very hard to separate control of the process from influencing the content subject to discussion because in many cases, mediators influence the content and subject matter of mediation by making strategic interventions which shape the deliberations at hand. Many facilitative mediators have come to reckon that the more interventions are made during one mediation process, the more the substantive outcome of the process is influenced. In most cases, mediators also opt for selective facilitation, where their body language illustrates that they prefer longer topics on certain selected themes of dispute. This absolutely changes the course of the mediation process and leads to an outcome that would not have been achieved if all the points of discussion had been fully pursued. In addition to this, facilitative mediators are also prone to strategic questioning whereby they ask leading and suggestive questions which can only be responded to by the answers they anticipate. As such, the final outcome of this process is mainly desirable to the mediators.[Cobb Sara, ‘Creating Sacred Space: Toward a Second-Generation Dispute Resolution Practice: Dialogue on the Practice of Law and Spiritual Values’ (2001) 28 Fordham Urban Law Journal 1017, 1029.] [Mulcahy Linda, ‘The Possibilities and Desirability of Mediator Neutrality –Towards an Ethic of Partiality?’ (2001) 10(4) Social and Legal Studies 505.] [Silbey Susan and Merry Sally, ‘Mediator Settlement Strategies’ (1986) 8(1) Law and Policy 7.] [Haynes John and Charlesworth Stephanie, The Fundamentals of Family Mediation, (Federation Press, 1996)206.]
When assessing the importance of neutrality in alternative dispute resolution therefore; it is prudent to understand that two factors come into play. The major implication of neutrality is that a mediator takes a very passive role during the proceedings, leaving a lot of control to the parties. On the other hand, a less neutral mediator is more interested in social justice and for this reason they take an increasingly activist role. In light of this, while conservative neutrality may not yield the best solution for the dispute, activist mediation would not only produce good results but also try to mend the relationship between the two parties engaged in dispute. This makes neutrality in its strict sense, a less important factor in Alternative Dispute Resolution (ADR). There is a need for mediators to intervene in the process of mediation so as to facilitate improvement of the world. This happens through facilitating the manner in which people handle disputes and how they end up interacting with each other.[Boulle Laurence, Mediation: Principles, Process, Practice (Butterworths, 2nd ed, 2005) 30.] [Gunning Isabelle, ‘Diversity Issues in Mediation: Controlling Negative Cultural Myths’ (1995) 1 Journal of Dispute Resolution 55.] [Gray Brownen, ‘Mediation as a Post-Modern Practice: A Challenge to the Cornerstones of Mediation's Legitimacy’ (2006) 17(4) Australasian Dispute Resolution Journal 208.]
It is incumbent upon mediators to make sure that the whole process guarantees a fair outcome for both parties. In fact this is a very important skill in mediation which ought to be progressively perfected by practitioners. The conceptual framework of classical neutrality does not envision such a principle because it bars mediators from making interventions; even those that ...