Originally from Dispute Resolution Journal

I. INTRODUCTION

“In any dispute the two opposing parties are logically incapable of designing a way out. There is a fundamental need for a third party role.”1 Mediation is a form of Alternative Dispute Resolution (ADR) that most practicing mediators, regulators, and legislators agree involve two key elements: a neutral and impartial third party who oversees the parties in resolving their dispute, and this third-party’s lack of decision-making authority. Unlike in arbitration, the parties themselves decide the outcome in mediation. For this reason, mediation is essentially facilitated negotiation.2 Understanding the role of mediators in the process of mediation brings to light the importance of impartiality. Because parties must necessarily disclose important and sensitive information to the mediator, the latter inherently accepts a position of influence.

The literature on mediation often focuses on mediator “neutrality” or “impartiality.” What do those terms mean, and can any mediator truly be neutral or impartial? Not only do all humans have their personal predispositions, prejudices, and biases, but also “inherent in the nature of the mediator's calling is a “bias” in favor of settlement.” 3 However, this paper finds that there is a way for a mediator to play an active role in the mediation and its outcome without misusing personal biases and preferences. The first section explains the mediation process and the mediator role within it. The second section explores the concepts of neutrality and impartiality and concludes that while mediator impartiality is important, and despite the mediator’s inability to dictate a resolution, the mediator nonetheless wields the power to direct the mediation such that a more successful outcome is achieved than in the utter absence of mediator guidance.