Originally from:

Journal of American Arbitration (JAA) - Vol. 4, No. 2

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ARTICLES

Should a Mediator Be Neutral?
By Joseph B. Stulberg

I. INTRODUCTION
I believe that a mediator should conduct a mediation conference so
that the meeting constitutes a justice event for its participants. To do that,
a mediator must be neutral. Under this conception, neutrality is a
derivative value: a mediator being neutral is necessary because that
intervener posture, and only that intervener posture, secures or promotes
the broader goal of conducting a mediation conference as a justice-event.
By contrast, if parties, a mediator, or mediation program designers have
other priority goals, such as case disposition, settlement, or economic
efficiencies, then an intervener (whether she labels herself a mediator,
facilitator, consultant or advisor) need not be neutral—she could be
impartial, smart, or interpersonally facile and that would be at least
sufficient to ground effective intervention.
In this essay, I want to sketch the framework for the argument
required to sustain this thesis. In Part II, I identify what I describe as
disturbing pictures of intervener conduct. What makes the conduct
disturbing is that, while the intervener effectively assists parties reach
resolutions acceptable to them, our intuitions suggest that the process
undermined some dimension of justice. In Part III, I sketch a conception
of mediation that makes a mediated conversation a justice-event, and I
suggest how a mediator’s being neutral is a necessary condition for