The Evolving Concepts of Neutrality and Impartiality in Mediation

Mediation is a process for resolving disputes with the aid of an independent third person who assists the parties in dispute to reach a negotiated resolution. Mediation brings into the dispute a neutral third party whose presence creates a new dynamic that does not exist when only the parties themselves or their representatives undertake direct negotiation. The objective of this third party is to assist the parties in reaching an acceptable resolution of the dispute. Edward de Bono begins his work by saying that: ‘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.’ Mediation as an alternative dispute resolution (ADR) mechanism is particularly important in family disputes, which are typically characterized by long, stubborn and continuous unresolved issues. A mediator in such circumstances can aid in filtering out the emotional aspects and train the focus on the real issues. This is true in cases involving non-family disputes as well. Definitions of mediation, especially in American literature, often refer to mediators as third-party neutrals. Terms like neutrality and impartiality frequently appear in discussions about the standards and ethics of mediators. A mediation agreement would also normally incorporate provisions that talk of mediator impartiality and neutrality. This paper delves into the import of the terms neutrality and impartiality and examines the evolving jurisprudence on it.