ARE MEDIATORS NEUTRAL, IMPARTIAL OR BOTH?

In common discourse, the terms neutrality and impartiality are used synonymously.

Many mediators use them interchangeably as “associated terms.” Within one author’s book I found the Index entry for Neutrality listed as “see impartiality.”

But is there a real difference between the two concepts? One Australian mediator/author draws a distinction. By neutrality, he refers to “a mediator’s sense of disinterest in the dispute and its outcome,” while he defines impartiality as “an even-handedness, objectivity and fairness towards the parties during the mediation process.” With this distinction it could be said impartiality is an absolute as it is inconceivable the parties involved in a session would waive the requirement for the mediator to act fairly. On the other hand, neutrality could be waived if a mediator had prior contact with one of the parties. 

The difference becomes critical when there’s a real power difference between the parties. If a mediator gives support to the party with less power, is the strict sense of the term not being impartial? But what if that mediator did so in order to promote true self-determination? Isn’t that a more important goal?

For example, take the hypothetical case of Yousef, who runs a small furniture upholstery business and Joseph, the manager of a large apartment complex. Joseph placed a significant order for upholstery and became Yousef’s sole client as a result, but then refused to pay citing flaws. Yousef filed a Small Claims Court case. During mediation, Yousef appears to be overwhelmed by the process and unable to negotiate with Joseph, who as an experienced manager holds firm with a low offer to settle the matter.

Is the mediator violating standards of neutrality if she is at all concerned about the inequity? Is the mediator violating standards of impartiality if in caucus she guides Yousef in ways to better negotiate? Or is the mediator violating standards of both neutrality and impartiality if she ends the mediation believing that Yousef’s interests are better protected in court?

Some mediators frame this dilemma in terms of “procedural” versus “substantive” fairness. Some mediators argue that mediators must attend to substantive fairness, that is, that the outcome must be reasonable and fair. It should be noted, however, some state standards require the mediation process be fair and balanced, but that the mediator themselves are not responsible to ensure substantive fairness in the final agreement.