Can a third party

really be neutral?

Neutrality v Impartiality
Neutrality: not supporting or belonging to

either side in an argument (unbiased

behavior)
Impartiality: the absence of bias or preference

in favor of one or more negotiators, their

interests, or the specific solutions that they
are advocating(unbiased attitude)

Underlying concepts in neutrality

Non-partisan fairness
The degree of mediator intervention
Role Limitation
Objectivity

Mediator Neutrality
The mediator must not have the following:
pecuniary interest in the subject matter
undisclosed relationship to the parties
possibility of personal gain

Factors that go against neutrality

1)
2)
3)
4)
5)
6)

Implicit Stereotype
The Halo Effect
Ageism
Selective Facilitation
Incidental Structures
Manner of Communication

Implicit Stereotype
Stereotyping: the application of beliefs about the

attributes of a group to judge an individual member of

that group.
Implicit stereotypes are the introspectively unidentified (or

inaccurately identified) traces of past experience that

mediate attributions of qualities to members of a social
category
No person can grow up in a society without having learned

the stereotypes assigned to the major ethnic groups.

Chin vs Runnels
the exclusion of Chinese-Americans, Hispanic-

Americans, and Filipino-Americans as grand

jury forepersons was assailed as a violation of
the defendants right to equal protection
The court expressly considered the claim that
unconscious biases contributed to this forty
year exclusion, concluding that there may be
a sizeable risk that perceptions and decisions
made here were likely affected by implicit
stereotypes

The Halo Effect

A cognitive bias in which an observers overall

impression of a person or entity influences the

observers feeling and thoughts about the
persons character
physically attractive men and women are

judged to be kinder, more interesting, more

sociable, happier, stronger, of better
character, and more likely to hold prestigious
jobs

Ageism
Defined as an alteration in feeling, belief, or

behavior in response to an individuals or

groups perceived chronological age
Levy and Banaji found implicit ageism to be

among the largest negative implicit attitudes

observed, even larger than the anti-black
attitude among white Americans

Selective Facilitation
A method whereby mediator influences the

content and outcome of the mediation by

exerting pressure toward the favored and
against the disfavored outcome by
differentially creating opportunities to talk
through the favored option (rather than
producing evaluative statements about the
clients positions or options)

Degree of mediator intervention

First view: mediators can express their concern parties

if they think a proposed agreement is unfair. They can

terminate mediation on the ground of unfair situations
Second view: intervention is only for reducing the

obstacles to communication, maximizing the

exploration of the alternatives, and addressing the
needs of those involved or affected
Commonality: as long as the parties determine the

outcome, intervention is acceptable

Incidental Structures
Table arrangement
Seating arrangement
Order of presentations

Table/Seating
arrangement
If the mediator sits closer to one party, such

arrangement could create a more intimate

conversational dynamic between the two persons and
give the impression they are congenial or in alignment.
the mediator could alter the arrangement and form a

tight circle with no table.

Mediators should be careful about chair placement and

body positioning so as not to turn their backs toward

one disputant more than the other.

Order of presentations
Asking the parties who would like to speak

first may be perceived as rewarding one party

over the other (the more assertive party or
the one closest to the mediator, for example)
Parties should be told why and how the

mediators determined the order of

presentations (for example, a random method
of selection, such as by alphabetical order or
coin toss).

Manner of
communication
Tone of voice
Speed of speech
Eye contact
Facial expression
Body language/physical gestures
Unevenness in eye contact, body placement and

movement (sitting forward or leaning back), and

attentiveness (looking down while taking notes) may
send signals of mediator approval or friendliness, or a
lack thereof.

Common conclusions
According to Paul Bailey, review of related

literature supports the view that neutrality in

mediation is impossible to practice if the
mediator is to be fair to both parties in the
process to enable them to reach agreement
on their issues in dispute. The key skill lies in
knowing when and how to intervene without
compromising the entire process

Carol Izumi
The veneer of neutrality is stripped away by

research findings that show convincingly that

mediators fall far short of the ethical duty to treat
parties impartially and without bias.
When confronted with scientific findings and

empirical evidence, mediation professionals must

concede that the requirements for eliminating
racial, gender, and other types of bias in
mediation have not been met.

mediators have the ability to enhance internal

neutrality by adopting explicit plans to reduce

the application of stereotypes activated
through encounters with parties and by
replacing biased thoughts and reactions with
non-prejudiced ones. Mediators must be
aware of and acknowledge unconscious biases
in order to garner the motivation to selfcorrect.

Bush and Folger

The tendency of mediators to influence cannot

be eliminated, but mediators can change the

nature of the influence
In a transformative approach of mediation, the

mediators interest is not in outcome at all, but is

an interest in making sure that the outcome
remains in the parties hands in a very explicit
way. Hence, the inevitable tendency to influence
is channeled in such a way that it becomes
harmless and empowering.