The Possibilities and Desirability of Mediator Neutrality - Towards an Ethic of Partiality?
| Author | Linda Mulcahy |
| Published date | 01 December 2001 |
| Date | 01 December 2001 |
| DOI | http://doi.org/10.1177/a020411 |
| Subject Matter | Articles |
THE POSSIBILITIES AND
DESIRABILITY OF MEDIATOR
NEUTRALITY – TOWARDS AN
ETHIC OF PARTIALITY?
LINDA MULCAHY
Birkbeck College, University of London, UK
ABSTRACT
This article draws on an empirical study of community mediation to question the
possibility and desirability of mediator neutrality. It argues that, although the notion
of neutrality is central to discussions of adjudication and mediation, debate on the
topic remains intellectually flawed and empirically problematic. Emphasis on the aspi-
rational nature of neutrality encourages us to ignore the suggestion that rather than
facilitating fair process and outcome the standard of neutrality could serve to exacer-
bate existing inequalities between disputants. When discussed in the context of medi-
ation the ideal becomes even more suspect as mediation promises ‘alternatives’ to the
inadequacies of court-based adjudication. This article explores the questions raised by
a group of mediators who rejected the possibility and desirability of mediation in
favour of a more reflexive approach to third-party intervention in disputes. It suggests
that, rather than aspiring to the empty goal of neutrality, we should be debating the
possibility of partiality as an ethical standard to govern dispute resolution.
INTRODUCTION
Mediators, like judges, claim to remain neutral in the course of managing dis-
putes. Like any such proposition, the contention is there to be questioned
and the relationship of the rhetoric employed to the social behaviour to
which it relates tested (Greatbatch and Dingwall, 1988). This article explores
four questions which have arisen in the course of undertaking empirical
research into the use of community mediation in disputes between neigh-
bours. What are the arguments for neutrality? Why do mediators, who
purport to offer alternatives to litigation, feel bound to aspire to neutrality?
Is neutrality possible? And most importantly is neutrality always desirable?
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It is argued that the visions of neutrality which emerge from the literature on
adjudication and mediation are intellectually flawed and an empirical impos-
sibility. While neutrality functions as an aspiration which confers ontologi-
cal security on those striving towards fair legal process and outcome, it can
also be claimed that the adoption of a neutral stance serves to exacerbate exist-
ing inequalities between disputing parties and promotes injustice. If this is
the case, it may be that mediators would be better advised to develop an ethic
of partiality than to reproduce the problematic ideals of liberal jurisprudence.
THE NOTION OF NEUTRALITY
Neutrality can be defined as the condition of being inclined neither way in
the hearing of arguments, as indifference or the absence of decided views,
feelings or expressions about an issue (Shorter Oxford English Dictionary,
1973). In a legal context it has also come to mean the exclusion of irrelevant
considerations such as the decision maker’s political or religious views and is
commonly held to have close links with notions of impartiality and inde-
pendence.1These concepts are most often discussed in the context of court-
based adjudication and are closely linked with the ideas of freedom from
prejudice or bias which have developed in public and administrative law.2
According to Griffiths (1997) the standard of neutrality requires that the
judge must ‘act like a political, economic and social eunuch, and have no
interest in the world outside [their] court when [they] come to judgement’
(p. 290).
The idea of neutrality is said to lie at the heart of the ideological self-
conception of a liberal democratic legal order, and has become a central com-
ponent of the modern imaginary (Lacey, 1998). Indeed, neutrality has become
something of a grundnorm for lawyers and society more generally. As
Kennedy (1997) has argued: ‘. . . it is a convention of judicial opinion writing
and a political requirement of popular culture, that judges represent them-
selves as neutral’ (p. 29). Elsewhere the idea has been described as instinctive
(Craig, 1994), universal (Stott and Felix, 1997), vital (Altman, 1990), reflect-
ing a shared understanding (Fuller, 1978) and basic (Le Sueur and Sunkin,
1997: 589). These claims are reflected in the fact that expectations of judicial
neutrality are a common feature of human rights codes, constitutions, the
common law and legislation (Bayles, 1990).
Friedman (1977), who claims that most regimes play at least lipservice to
this ideal, has also made a convincing case for the aspirational value of neu-
trality:
We often hear that these beliefs are really only ‘myths’, if so, they are healthy,
perhaps indispensable myths. The myths and their supporting propaganda, can
coax society to move toward its noblest ideals, to creep inch by inch towards a
genuine legality. (p. 67)
Discussion of the aspirational value of neutrality reflects the recognition
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