Do No Harm, Neutrality, … and a Cold Autumn Morning!

“You look awfully pensive this morning,” said Contra, joylessly looking at the steam coming out of his mug, “your coffee is getting cold, Thesia.”

“I heard something in the class last night, and now I cannot stop thinking about it.” Pausing to glance at her untouched breakfast.

“What is it? Maybe I can help!” he exclaimed, beaming with anticipation.

“Well, …” she said, casting her mind back, trying hard to remember all the details, “the professor was talking about the fundamental principles of Family Dispute Resolution, and she mentioned “Do No Harm” as one of three fundamentals, amongst ‘the process being voluntary’ and ‘fair and informed self-determination.’”

“Do no harm?” he interjected, looking baffled. “I know all about self-determination, but I don’t recall reading anything about this ‘do no harm’ idea! Are you sure they were not talking about neutrality?”

“Ah, yes, I’m pretty sure. I was there, remember?!” said Thesia sarcastically, “actually, I think I like the idea much better than ‘neutrality.’ Who can define ‘neutrality’ by the way? It is so subjective.”

“Are you now questioning neutrality?” blurted out Contra, looking aghast at his sister, who was now raising her coffee mug contentedly. “it is, if you must know, one of the core principles of mediation ethics. How can you think that way? People come to the mediation session with all their fears, anxieties, and concerns. ‘Lack of trust’ is the one thing that you can reliably be sure to find in a dispute situation.” Continued Contra, standing with his arms folded, looking directly at Thesia, silently inviting her to contradict.

“I don’t disagree with ‘neutrality,’ per se, I just don’t see it as a ‘principle’ and be compelling that much to be a central element in a mediation process.” She replied softly, trying to mollify her brother’s indignation. “I just have serious doubts about the efficacy of neutrality and impartiality. There are numerous pieces of literature around this. As Rachael Field (1996)  puts it: ‘a woman who has survived violence is disadvantaged by a process, such as mediation, which requires that she assert her own interests face-to-face with the perpetrator, in a context where strong intervention on the part of the third-party facilitators would breach their neutrality.’ “

“You see?” She continued, becoming more animated while trying to bring forward more evidence that she is not alone in thinking this way. “Especially in a power-imbalance situation, being neutral does mean taking a side: the side of the more powerful party. Don’t you think?” asked Thesia, passionately articulating her points.

“It all makes sense; however, …” replied Contra, contemplating intensely, “I do believe any deviation from a neutral position will present the mediator as biased and partial towards one party against the other while being impartial is a crucial element of a just system. Astor (2007) asserts that ‘[t]he idea that laws and the adjudicators who interpret and apply them are neutral is central to conventional understandings of fairness and justice in western liberal democracies.’ This, I believe, is a critical point one can hardly ignore.” Pausing, he looked at Thesia, seeking her admission.

“I see your point Contra,” Admitted Thesia, not entirely convinced yet. “What Astor is talking about is not relevant to the issue I have with neutrality in mediation. This is precisely what we talked about last week about the adversarial process. The law has been developed with this approach as a core concept deeply ingrained. The interpretation and application of the law are neutral, yes. I am totally on-board. However, adjudicating between two disputant parties requires both parties (i.e., adversaries) to participate in the process on a relevantly same level of power, knowledge, and influence. That’s why they need lawyers, and if one party cannot afford a solicitor, the court will appoint one. The idea is not to secure jobs for the lawyers’ league, but to ensure the equilibrium in the adversarial process.”

“And with that in mind,” continued Thesia, raising her finger to stop her brother interrupting, “the adjudicator must remain neutral, listen to arguments disinterestedly, apply the law impartially, and decide justly.”

“On the other hand,…” raising her voice, blocking Contra’s attempt to reply, “on the other hand, mediation is NOT built on the foundation of the adversarial process. It meant to be consensual and towards finding a mutually agreeable solution for a disputed situation.” Pausing her monologue, she became aware of Contra’s eerie silence. “Any ideas, dear brother?” she prompted.

“I’m trying to understand the connection between not being adversarial and rejecting neutrality in mediation. Assume mediation is not an adversarial process; why does it matter for neutrality?” asked Contra, unable to shake a feeling that maybe Thesia is on to something here.

“In a mediation in which there is a power balance between parties, the possibility of having a fair process increases considerably. Both parties exert relatively the same amount of power, and even if they enter the mediation process with a win-lose attitude (i.e., adversarial), the mediator can navigate and guide them towards a more win-win way of thinking.”

Contra noticed her holding the salt and pepper shakers on the same level to demonstrate two parties in a power-balanced situation. “That’s a novel use of our kitchen tools!” quipped Contra. “But what if there is a power imbalance? Why should it change the mediator’s attitude towards impartiality? Do you mean they should forego impartiality and support one party against the other?” queried Contra, exasperated and not believing someone would question such an essential pillar of mediation.

“I know that neutrality has a long history as a crucial element of mediation, and I appreciate that me questioning the notion of mediator neutrality can make you nervous and uncomfortable,” acknowledged Thesia, “however, it’s definitely not my intention. My point is, amongst those seeking mediation to resolve their disputes, there will be a considerable number of people who, in addition to the conflict situation they are living in, they are dealing with intra-personal conflicts of their own, for which they will need their mediator to play a more active and constructive role, not a neutral observer and frequent questioner; otherwise, the risk is them not reaching a self-determined decision while dealing with all those inter- and intra-personal conflicts.”

“On top of that,” she continued, “a dispute system is excessively complex, filled with complicated dynamics, intricate relationships, and deep-seated and yet nebulous emotions. How can a neutral mediator connect with either party in a deep and meaningful way—which is an absolute requirement to build a trusting relationship—without putting their neutrality in jeopardy?” asked Thesia, expectantly awaiting her brother’s response.

“This is exactly why we need neutrality in mediation.” Asserted Contra. “Mediators should not present themselves as leaning towards either party by showing any inclination, tendency, or worst of all, validation of emotions and therefore boosting one party’s positions against the other’s.”

“Hmmm…,” she seemed deep in thought, “this is an excellent point; however, I disagree. Being empathetic, understanding, and caring does not mean you are biased. I think you inadvertently brought up one of the main issues that I have with some interpretations of neutrality. Dealing with complex and deep emotions—many rooted in values—is a minefield, but it doesn’t mean the mediator should avoid it. On the contrary, it means the mediator needs to be well prepared and highly experienced to be able to manage the situation.”

“The mediator, I believe,” continued Thesia, “needs to acknowledge and recognize emotions on both sides and help both parties to build a pathway forward while navigating through these turbulent waters. The more emotional the parties, the more experienced the mediator should be. Grasping at neutrality—and avoiding emotions—is like erasing the question instead of answering it.”

“Let’s assume you are right for a moment.” Interrupted Contra. “How do you propose to guarantee that the mediation process is unbiased and fair? With neutrality out of the window, it seems that the mediator can sway in any direction!”

“Let me answer your question by asking you a question.” Demanded Thesia, waving her hand as if to clear the imaginary whiteboard. “Forget about all we discussed so far. What is most important in any mediation process? What is the objective of having a mediation session? Is it safeguarding the notion of neutrality, or achieving a just solution for the dispute parties?”

“To achieve a just solution, surely,” agreed Contra, “but, the just solution should be achieved by the dispute parties themselves; hence the term self-determination; and nothing can safeguard that outcome better than neutrality and impartiality of the mediator, which ensures the mediator will not affect the outcome of the process in any ways.”

“But they DO; they do affect the outcome Contra, don’t you see?” Protested Thesia, excitedly. “the outcome of ‘now-dispute’ will be changed to ‘then-solution’ by the two parties going through the mediation process ‘with the help of’ the mediator. That is precisely what is required from a mediator, especially when there is an imbalance of power between parties. The mediator is expected to ‘turn’ the one-way street to a two-way highway! Hence facilitating the smooth flow of information and enabling learning to happen.” Claimed Thesia, looking frustrated.

“Those are valid points,” acknowledged Contra, “however, …”, raising his hand to stop any interruptions, “however, I’m not fully convinced. We need to talk about this more… more coffee?!”

Works Cited

Astor, H. (2007). Mediator Neutrality: Making Sense of Theory and Practice. Social & legal studies, 16(2), 221-239. 

Field, R. M. (1996). Mediation and the Art of Power (Im)Balancing. Queensland University of Technology Law Journal, 12, 264-273.

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