Neutrality and Impartiality
For many people, when they hear the word mediation, two terms instantly come to mind, neutrality and impartiality. According to Experts in the field of mediation, neutrality is considered a key component to the mediation process (Frenkel & Stark, 2008; Gibson, Thompson, & Bazerman, 1996; Hale & Nix, 1997; Jacobs, 2002). Hale and Nix (1997) believe that impartiality is also important to the mediation process, as well as the role of the mediator.
Even though there is agreement that neutrality and impartiality are intergral concepts to the mediation process, there is not consensus on how the two terms are defined. There are numerous standards from various associations and individual states, however neutrality and impartiality still remain an enigma. Even though McCorkle in 2005 (p.172) discovered that many states adopted in part or in whole the Model Standards of Conduct's, the concepts and meanings still vary. Since an assortment of terms is used to define neutrality, Heisterkamp described it as a multifacted concept (2006a, p.2062).
It would seem necessary for a clear and concise definition be available to provide guidance to the field since all mediators have a subtle affect on the mediation process, including the disputants, the negotiation, and the outcome (Cohen, Dattner, & Luxenburg, 1999). It appears that experts in the field of mediation also have differing opinions about neutrality and impartiality. There are camps that believe the two terms define the role of the mediator or sees them as the axis of the mediation process; while others see these two terms as an unachievable myth (Frenkel & Stark, 2008).
With this being said, the purpose of this paper will attempt to provide a definition for neutrality and impartiality through a review of various standards across the United States, Canada and Europe, as well as peer-reviewed journal articles. The review will look to see if guidance is provided for mediators to apply neutrality and impartiality in their practice. The literature used for developing this paper mainly focused on neutrality and impartiality, leaving out many other mediation topics. Even though the articles reviewed were situated in various mediation venues (e.g. child custody, human resource, etc.), the purpose of this paper was not to review the settings where mediations can occur, but on how neutrality and impartiality are maintained during the mediation process. Next the paper will offer a variety of options a mediator may consider to focus on while facilitating mediation in order to meet neutrality and impartiality standards.
Definition of Neutrality
Neutrality is an umbrella term that embraces a number of concepts that are not identical (Jacobs, 2002, p. 1406) with little or no power over the parties ability to function or remain focus on the mediation process (Cohen, Dattner, & Luxenburg, 1999). Some of the terms used to define neutrality are equal attention, providing what is needed by each party, respect, fairness, justice, appropriateness, unbiased relationships, balance of even-handedness and impartiality (Jacobs, 2002; McCorkle, 2005; Rifkin, Milin, & Cobb, 1991). This long, divergant list of words brings forth many varying meanings. McCorkle (2005)and Cohen, Dattner and Luxenburg (1999) believe neutrality is better defined in terms of impartiality and equidistance.
To try to gain a better understanding of the term neutrality, the following associations' and states' standards were reviewed: The Model Standard of Practice for Family and Divorce Mediation from the Association of Family and Conciliation Courts (The Symposium on Standards of Practice, 2000), The Canada Business ADR Code of Conduct (The Canadian Foundation for Dispute Resolution, 2006), The Mediators Code of Conduct (ADR Institute of Canada, Inc., 2005), The European Commission (2004), and The Model Standards of Conduct for Mediators (American Arbitration Association, American Bar Association, Association for Conflict Resolution, 2005). Upon review of theses standard and codes of conduct, neutrality was not explicitly defined. Reference to impartiality, conflict of interest and self-determination were provided.
In the articles reviewed, there is reference to the standards providing a definition for neutrality. For example Smoron (1998, p. 271)references The Association of Family and Conciliation Courts' Model Standards of Practice For Family and Divorce Mediation as saying "Neutrality refers to the relationship that the mediator has with the diputing parties." Another reference was "Neutrality as defined by these organizations and their members has meant scrupulous attention to doing exaclty equal to and for each disputant (Taylor, 1997, p. 218). However, Heisterkamp (2001, Nov.) reviewed the Model Standards and noticed the term neutrality was referenced 35 times but never defined
According to some experts in the field of mediation, neutrality is the freedom from bias regarding outcomes (Frenkel & Stark, 2008, p. 84), while others believe it is denying or curbing one's self-interest and suspension of judgement (Van Gramberg & Teicher, 2006) According to Astor (2007), neutrality has many meanings. One of these meanings is not to influence the content or outcome of the mediation process but to only control the process. Another highly regarded meaning is not to show favortism and to treat each person equally. A mediator should not form any personal relationship with either party which may cause a bias. These definitions provided by Astor resembles impartiality as defined later in this paper. Rifkin's, Milen's and Cobb's (1991)defines neutraltiy using terms such as impartiality and equidistance.
Neutrality is not defined
It is difficult to implement a concept that is not defined clearly in the standards provided or the literature. To defend the lack of clarity around neutrality, McCorkle (2005) mentioned that neutrality cannot be defined with one broad definition because it has different meaning depending on if it is being applied to the content or the process. Neutrality needs to be thought of as a continuum, with levels or degrees based on the context of the mediation (e.g. family dispute, criminal), the needs of the disputants and the role the mediator assumes. Neutrality will not always look the same in each mediation session (Taylor, 1997). Even the experts in the field have difficulty agreeing on a definition for neutrality. For this paper, the working definition for neutrality will be the mediator being unbiased towards the mediation process and outcome.
Definition of Impartiality
Impartiality, on the other hand, is well defined in the standards. "Many organizations such as Colorado Council of Mediation Organization, Society of Professionals in Dispute Resolution, the National Association of Social Workers and the Academy of Family Mediators define impartiality as Freedom from favoritism and bias in either word or action and involves a commitment to aid all parties as opposed to a single party in reaching a mutually satisfactory agreement" (Heisterkamp, 2006, p. 302). The Association of Family and Conciliation Courts' Model Standards of Practice for Family and Divorce Mediation states "Impartiality means freedom from favoritism or bias in word or action" (Smoron, 1998, p. 271; The Symposium on Standards of Practice, 2000). The Academy of Family Mediators, Standards of Practice for Family and Divorce Mediation defines impartiality as meaning "freedom from favoritism or bias either in word or action, a commitment to aid all participants, ...as opposed to a single individual,...a mediator will not play an adversarial role" (Smoron, 1998, pp. 269-270).
Many of the standards also provide specific guidance to assist the mediator with being impartial. For example, the European Commission (2004) recommends the "mediator must at all times act, and endeavour to be seen to act, with impartiality towards the parties and be committed to serve all parties equally with respect to the process of mediation." The Model Standards of Conduct for Mediators (American Arbitration Association, American Bar Association, Association for Conflict Resolution, 2005, p. Standard II) says "a mediator shall decline a mediation if the mediator cannot conduct it in an impartial manner. Impartiality means freedom from favoritism, bias, or prejudice." The Association of Family and Conciliation Courts' Model Standards of Practice for Family and Divorce Mediation provides a specific list of actions and behaviors for a mediator in Standard IV (The Symposium on Standards of Practice, 2000).
A family mediator shall conduct the mediation process in an impartial manner. A family mediator shall disclose all actual and potential grounds of bias and conflicts of interest reasonably know to the mediator. The participants shall be free to retain the mediator by an informed, written waiver of the conflict of interest. However, if a bias of conflict of interest clearly impairs a mediator's impartiality, the mediator shall withdraw regardless of the express agreement of the participants.
Unlike neutrality, impartiality is well defined in the peer-reviewed journal articles by the experts. It has been said that impartiality is the quality of being equally committed to both parties' interest (Gerami, 2009; (Morris, 1997, p. 321). Frenkel and Stark (2008) define impartiality as freedom from bias (p. 84), favoritism and prejudice (p. 291) regarding the participants. Impartiality is the ability of having an unbiased relationship with each party and a commitment to aid all parties in negotiating a settlement (Cohen, Dattner, & Luxenburg, 1999). Another way to look at impartiality is through the mediator's equidistance from the parties (Van Gramberg & Teicher, 2006). Some terms used to define impartiality are freedom from favoritism or bias by appearance, by word or by action, a commitment to serve all parties, and the mediator does not have personal stake in the outcome or a conflict of interest (McCorkle, 2005). According to Smoron (1998, p. 260), Impartiality means the mediator does not play an adversarial role. The various components of impartiality are not favoring one disputant over another, not having preconceived ideas on what the outcome should be, and the mediator not imposing their personal interest or favoring one disputant over another, not having preconceived ideas on what the outcome should be (Gerami, 2009).
Before a mediator takes on a case, they must make sure they are impartial towards the disputants, content and outcome of the case from the beginning and throughout the process, to remain completely neutral perspective or none and this is a difficult for anyone to maintain because through the process the mediator is exposed to each disputant's side of the dispute which cause thought in the form of assessment, evaluation and judgment (Gerami, 2009).
Neutrality and Impartiality Applied To the Mediation Process
In many circumstances impartiality and neutrality are treated as synonymous terms (Heisterkamp B. , 2006b). This intertwining of terms is seen many times in the literature. For example, Rifkin, Milen and Cobb (1991) define neutrality as being impartial and having equidistance (Hale & Nix, 1997). In this example neutrality is being defined as impartiality. Many policies state, to insure neutrality the mediator should not have a relationship with either party or a vested interest in the outcome of the proceedings (Van Gramberg & Teicher, 2006). The previous statement is describing neutrality by recommending actions defined earlier as being impartial. Further, according to the Illinois State Bar Association's Standards and Principles for Family Dispute Mediation, impartiality is not the same as neutrality (Smoron, 1998, p. 272). McCorkle (2005) pointed out how the standards developed by many states and various associations are murky in regards to providing guidance with neutrality and impartiality. In her research, McCorkle (2005) discovered that many of the standards used the two terms interchangeably or did not provide a clear, consistent definition, causing the confusion with the two terms.
This confusion makes it difficult for mediators to obtain and maintain neutrality and impartiality during the mediation process. Part of the difficulty stems from the lack of understanding of what the mediator is trying to achieve. For example, if a mediator is trying to achieve neutrality based on Frenkel's and Stark's definition, then they are focusing on their actions towards the mediation process. However, if Rifkin's, Milen's and Cobb's definition for neutrality is used, the mediator would be focusing on equidistance and their relationship with the parties, which describes impartiality.
During the mediation process, neutrality is difficult to obtain and maintain, especially when the mediator needs to create an equal balance between the parties (Astor, 2007). To appear impartial, the mediator should expect self-determination and believe the disputants have the ability to reach a voluntary, uncoerced agreement (Taylor, 1997). Astor (2007) believes it is more important for the mediator to maintain neutrality than impartiality. This is because the mediator may need to balance the power between the two parties, which will require the mediator to exercise strategies that may cause them to appear as if they are not being impartial.
Empowering and balancing power during the mediation is an important strategy which requires tremendous amount of skill due to the concern mentioned above. Frenkel & Stark (2008) believe for the mediator to be truly impartial, they will need to just facilitate the disputants so they are able to make self-determined decisions and not give opinions or advice while watching for unequal power between the disputants. Conversely, a mediator may need to add information, encouragement or reminders (Taylor, 1997) or empower a disputant when unequal power, status or knowledge is presence (Garcia, Vise, & Whitaker, 2002). This creates a paradox for the mediator, they must remain impartial to both parties, but on the other hand they must equalize power between the two disputants (Hale & Nix, 1997; Rifkin, Milin, & Cobb, 1991). Many of the mediation strategies, such as power balancing, coaching, suggesting outcomes, are not grounded in what would be thought of as neutral activities; but not intruding on the process when you know the disputant is making a harmful choice would be just as unethical (McCorkle, 2005).
Another concern is the effects of the mediator's life experiences and knowledge on the process. McCorkle (2005) brings this forward as a possible barrier and asks, can a mediator truly be neutral regarding the content or personality and style of the disputant? Astor (2007) inquirers on if a mediator can ever be value free? This is especially a concern when mediation is being used in the work place. The mediator has a relationship with the disputants as well as a vested interest in the outcome, which may interfere with their ability to function in a fair, bias or impartial manner (Van Gramberg & Teicher, 2006). Also, the use of unclear language sometimes gets in the way of the mediator appearing neutral during the mediation process (Jacobs, 2002). These are all illustrations of the "dissonance between theory and practice" (Astor, 2007, p. 222) in terms of applying neutrality.
Standard and Guidelines Are Available, But Are Vague
It appears mediators are constantly struggling with the fine line between appropriate and inappropriate actions and behaviors required to meet the standards. Unfortunately, the standards don't always provide the specific level of guidance the mediator may need. For example, The Model Standards were written as characteristics for the mediator to aspire to reach, but they were not meant to be taken as law (The Symposium on Standards of Practice, 2000). The Canadian (ADR Institute of Canada, Inc., 2005), European (European Commission, 2004) and American Model Standards (American Arbitration Association, American Bar Association, Association for Conflict Resolution, 2005) all start off with a statement that "there is no priority significance in the order the standards are listed". So when a mediator is faced with a situation where they need to determine which standard is more important to follow, their neutrality or the disputant's self-determination, the standards will not provide this guidance.
Some experts in the field believe the model standards are not able to provide this hierarchical guidance because mediators cannot agree on which ethical principles in the mediation process is overarching (Frenkel & Stark, 2008; Moffitt, Spring 2006). Nonetheless, the standards do provide distinction between must do's and can do's. The word shall is used in the standards when the mediator must follow the principle, however, should is used when the mediator can make a choice to implement (American Arbitration Association, American Bar Association, Association for Conflict Resolution, 2005) and should seems to be written in the guidance. To provide an example of this, below is Standard IV, an excerpt from the Model Standards of Practice for Family and Divorce Mediation (The Symposium on Standards of Practice, 2000):
A family mediator shall (emphasis added) conduct the mediation process in an impartial manner. A family mediator shall (emphasis added) disclose all actual and potential grounds of bias and conflicts of interest reasonably known to the mediator. The participants shall (emphasis added) be free to retain the mediator by an informed, written waiver of the conflict of interest. However, if a bias or conflict of interest clearly impairs a mediator's impartiality, the mediator shall (emphasis added) withdraw regardless of the express agreement of the participants.
In the guidance for the standard listed above the word should is used, "A family mediator should (emphasis added) not accept a dispute for mediation if the family mediator cannot be impartial," and "A family mediator should (emphasis added) guard against bias or partiality based on the participants' personal characteristics, background or performance at the mediation."
To help provide some hierarchy, some experts in the field of mediation believe neutrality should be the prerequisite for mediation, but McCorkle (2005) points out that the definition provided by the standards overly simplifies neutrality as providing equal treatment to both parties; when in actuality the concept is more complex than that. Since the standards are not used as laws but as guidance, there is no vehicle to hold the mediator accountable or evaluate their performance. So this again leaves the mediator on their own to determine if they are facilitating mediations in a neutral and impartial manner.
Neutrality is easy to break
As it has been pointed out so far in this paper, neutrality is ambiguous and the standards provide little guidance as to when to intervene during mediation process (Gibson, Thompson, & Bazerman, 1996). Neutrality is easy for a mediator to lose at any point during the mediation process. It can be lost through their actions, words or by being perceived by any one of the disputants as being unfair or not attending to each party equally (Garcia, Vise, & Whitaker, 2002).
A concern brought forward is that the Model Standards are written in absolutes and not in a hierarchical order, so they do not provide enough guidance when mediators are faced with tension between two principles (Frenkel & Stark, 2008) (Moffitt, Spring 2006). The guidance from the standards is flimsy because of the number of times 'should' is used in the description of the mediator's actions. This leaves numerous opportunities for the mediator to make judgment calls and choices which may be inappropriate during the mediation process (Frenkel & Stark, 2008; Moffitt, Spring 2006).
What leads to further difficulty for the mediator is the fact that they work in a paradoxical world. They are expected to provide procedural order to the mediation process, help with clear communication and informed decision making, while maintaining the appearance of being impartial and neutral. The problem stems from the strategies used to achieve this goal causes them to give the impression as if they are favoring one disputant over another (Jacobs, 2002)
The goal of mediation is for the mediator to influence the process (Gibson, Thompson, & Bazerman, 1996) while remaining impartial and balancing the power between disputants (Jacobs, 2002). This role requires the mediator to assume actions which may break or appear to break neutrality. Some of the actions mediators are required to employ that may cause them to break neutrality are asserting themselves in order to keep the process moving as long as it does not affect the content (Cohen, Dattner, & Luxenburg, 1999), helping the disputants come to an inform decision (Van Gramberg & Teicher, 2006) and caucusing fairly by providing each party equal time (Jessani, 2002). There are other actions the mediator may utilize but with caution because they overstep the mediator's role and impinge on the disputants' self-determination. These include diagnosing the problem and trying to make the disputants solve it, upending the client's agenda, preempting talking, and believing they have more knowledge or skills than the disputants on how to best resolve their issues (Taylor, 1997).
The language the mediator uses can also impede on neutrality.The way a mediator chooses to phrase, question and/or answer during the mediation process will affect how their neutrality is perceived by the disputants (Heisterkamp, 2006). A mediator should avoid using we and us in a way that can demonstrate an alignment to one of the disputants (Garcia, Vise, & Whitaker, 2002). Despite this recommendation later in the paper the use of 'we' and 'us' will be explored as a means of maintaining neutrality.
The mediator's values and biases can also prevent them from being able to maintain neutrality. It is important for the mediator not to allow their view points and beliefs to influence the process and their perception of the disputants (Cohen, Dattner, & Luxenburg, 1999).These may also be considered conflict of interest. Such as when the mediator has ties to the organization or company (Van Gramberg & Teicher, 2006) or they view everything with a constrained view (Taylor, 1997). Taylor defines constrained view as when the mediator sees people as having essentially flawed, constrained natures that are evil and by nature person will act wrongly. The mediator who views the process with a constrained view point will exert their view in order to fix this wrong they believe is occurring.
Emotions are another aspect that may get in the way of the mediation process and break neutrality. These emotions can be on the part of the disputants as well as the mediator. Garcia, Vise, & Whitaker ( 2002), recommended, with caution, venting be allowed at the beginning of the meeting in order to uncover the issues. The 'caution caveat' is provided because allowing venting can easily be misconstrued as being bias or unfair. If the mediator is affected emotionally by the issue being discussed during the mediation process, then they may not be able to remain neutral and impartial (Taylor, 1997). This is why it is important for the mediator to review the case to determine if there are conflicts of interest.
All of these various ways for neutrality to be violated or broken leads to the idea for the need of a neutrality continuum to allow the mediator to meet the unique needs of the disputants during the mediation process (Taylor, 1997). Taylor points out that this is especially a concern when the mediator is dealing with disputants' emotional state and imposes their views into the process (pg. 224).
Alternate strategies and techniques to implement
It is apparent neutrality is difficult to obtain and maintain during the mediation process, even with numerous standards available for guidance. In the field of mediation, there are three different conceptions of neutrality and they are impartiality, equidistance and discourse (Gibson, Thompson, & Bazerman, 1996) (Rifkin, Milin, & Cobb, 1991). The mediator may want to focus on these strategies in order to maintain neutrality since they are tangible, easier to recognize and evaluate. This section will look closer to these options, as well as other, as they apply to the mediation process as an alternative to neutrality. The following alternatives will be discussed: role of the mediator, equidistance, multiple vantage points, maximizing party control, questioning and summarizing, symmetric prescriptive advices (SPA), use of mediator's language.
Role of the Mediator
The role of the mediator is to ensure that each disputant is treated with fairness, as well as being perceived as fair (Van Gramberg & Teicher, 2006). The mediator should never become adversarial or advocate towards one of the disputants (Hale & Nix, 1997). The mediator should not want to be seen as having authority or get caught up in either party's emotions. Their actions should be the least intrusive as possible. The focus should be on facilitating the parties through the process of negotiation, leading them to their own agreement (Holaday, 2002). This leads to "significant tension between the mediator's effective fulfillment of his or her function and maintaining impartiality throughout the mediation process" (Gerami, 2009, pp. 433-434). The role the mediator chooses to take will either help them remain impartial and neutral or hinder them (Smoron, 1998).
"The mediator is cautioned against displays of favoritism, bias or prejudice, but to display an image of someone equally concerned with the needs and perspectives of both disputing parties" (Hale & Nix, 1997, p. 340). Various statements in the opening will set the stage on how the mediator will operate in the course of the mediation (Smoron, 1998). By self-labeling during the opening statement, the mediator either implicitly or explicitly states what their role will be during the mediation process; this should help limit the effects of not appearing impartial (Heisterkamp B. L., 2006a). In the opening, it is best for the mediator to advise the disputant that the mediator, as their position in the case, must maintain impartiality and the responsibility for final decision making will be the disputants. By the mediator defining their role in the beginning, will assist them with maintaining their neutrality (Smoron, 1998) they are "displaying the role as neutral and should reveal the organizational or structural features of neutrality" (Heisterkamp B. L., 2006a, p. 2055)
Equidistance which is the process of allowing both parties the opportunity to express themselves in the same manner is another strategy mediators can use to appear neutral (Cohen, Dattner, & Luxenburg, 1999).Equidistance helps to create partiality and symmetry by doing the same to both sides (Van Gramberg & Teicher, 2006) and not favoring one side over the other (Astor, H., 2007).
When a mediator uses equidistance they encourage each party to disclose their side of the story to allow the true issue to be uncovered (Cohen, Dattner, & Luxenburg, 1999). By allowing both sides of the story to be told in whole, the mediator elicits from both parties the complete story in order to understand all the concerns (Garcia, Vise, & Whitaker, 2002). When intervening or questioning, the mediator needs to apply the strategy equally to both sides. This will include providing help with storytelling, as well as the length of time allowed for the story to be told (Garcia, Vise, & Whitaker, 2002).
According to Garcia, et.al (p.217), neutrality and fairness does not mean the mediator needs to treat each disputant equally; although the mediator does need to be cognizant not to be drawn into the first story as a means to critique the rest of the mediation process. This is particularly true when there is a power imbalance (Astor, H., 2007).
Multiple vantage points
Openness to other's perspectives is seeing things from various points of view (Astor, 2007). To complete this process, the mediator must be aware of their point of view throughout the process, but at the same time open to and value other's points of view. The more viewpoints considered during the mediation process, the better the outcome will be because it allows the disputants to use autonomous, independent judgment (Astor, 2007). Valuing multiple vantage points is more than just noticing them, but to actually apply them to the decision-making process (Astor, 2007). The mediator should make sure they are able to separate their beliefs in order to remain impartial. They should not allow the person's characteristics, background, values, beliefs, performance or mannerisms during the mediation process get in the way of performing or remaining impartial (Frenkel & Stark, 2008). The mediator should acknowledge their own position on the subject, which is also known as mediator perspective, to ensure there is no partiality (Astor, 2007).
There is no guidance on how the mediator should handle their own personal perspectives (Astor, 2007), however Heisterkamp (2006a) believes they need to self-monitor their beliefs and values. All mediators have their own personal biases which they should be aware of so they can gain control of them and not allow them to influence their conduct of the mediation process. Astor (2007) cautions the mediator as they monitor their values and beliefs, that they are not viewing them through the dominant culture's viewpoints because they may consider them to be "normal" or "common sense". This is especially important if the mediator is part of the dominant culture because diversity should be honored and desired. Astor recommends for the mediator pays close attention to the various cultures and viewpoints the parties represent. This may translate into them taking on cases they believe they can remain impartial towards both parties and the content throughout the whole process (McCorkle, 2005).
Maximizing party control
Another focus for the mediator is maximizing the disputants' control of the process (Astor, 2007). When a mediator is aiming on providing maximum control to the disputant, they make conscious decisions about their actions and how they intervene.
Astor favors the use of maximizing party control because it provides guidance on how to maintain neutrality. The mediator focuses on minimizing their input so the parties can have greater control over the process, while simultaneously determining if the addition or omission of input is appropriate and ethical. The "mediator has an obligation to deal with power" (Astor, 2007, p. 236) struggles between the disputants. When they intervene, they must also consider their own power, as to not take the control away from the disputants.
Questioning and Summarizing
The mediator uses language as a form of communication that replicates conversations and normal social interactions in order to keep all the parties involved and the process moving (Jacobs, 2002). The mediator may employ the following questioning strategy in order to appear neutral: indirect advocacy, asking the parties open-ended questions which may lead them to their own discovery of possible solutions; framing advocacy allows the mediator to clarify or summarize what was said and place the information in the direction they believe the discussion should go and set the tone of the conversation; equivocal advocacy is when the mediator provides information to either one side or both sides in order to assist the process to continue to move forward, especially during impasse (Jacobs, 2002).
Some other conversation methods that the mediator can use during the mediation process are paraphrasing and information-seeking. Paraphrasing is when the mediator rephrases what they just heard to demonstrate that they were paying attention to the disputant and understands what they were saying. This shows neutrality when the mediator accurately reflects what the disputant uttered and neither affiliates nor disaffiliates the mediator in the process (Heisterkamp, 2006, p. 2058). Information-seeking is when the disputant attempts to get the mediator to indicate understanding and agreement with them, demonstrating an alignment (Heisterkamp, 2006).
Symmetric Prescriptive Advice (SPA)
As a strategy during the mediation process, instead of focusing on neutrality, Gibson, Thompson and Bazerman (1996) recommend using Symmetric Prescriptive Advice (SPA). With SPA, the mediator remains impartial but not completely neutral. This is due to symmetry which implies they will serve both parties interest and prescriptive which requires them to provide advice and guidance to both parties as needed (Gibson, Thompson & Bazerman, 1996). During the process, the mediator uses active awareness to keep their own biases and judgments in check (Gibson, Thmpson & Bazerman, 1996).
Central to SPA is the mediator's role to remain symmetric when helping the parties determine if an agreement should be reached and how to frame an appropriate argument including disbursement of the resources (Gibson, Thmpson & Bazerman, 1996). The mediator determines prior to starting the process if there is positive overlap between each parties' reservation point, their break-even point. If this is positive, there is a bargaining zone in which the mediator and disputants have to work in (Gibson, Thompson & Bazerman, 1996). In the SPA framework, a rational, negotiated outcome should only be attempted if both parties can better achieve their goal through the negotiation and the outcome is efficient and based on full consideration of the disputants' allocated resources (Gibson, Thompson & Bazerman, 1996). SPA requires the mediator to apply the appropriate social justice principle in order to assist the disputants with their agreement. One of the principles is equity; this is when resources are distributed in proportion to the disputant's input and investment. The other principle is equality; this is when the resources are distributed equally amongst the parties regardless of input and investment or need of each disputant (Gibson, Thompson & Bazerman, 1996).
Use of Mediator's Language
Mediators need to convey the appearance of neutrality and fairness and this can be achieved through conversational techniques employed during the mediation process (Heisterkamp, 2006a). When a mediator uses disclaimer to explain why they are implementing a particular strategy during the process will help the disputants to understand the purpose and not perceive that neutrality is gone (Garcia, et.al, 2002).
To diminish disputants' claim of bias proceedings, a mediator should use collective language (Heisterkamp, 2006b). One way to accomplish collective language is using footing. Footing is used in language as a process for the speaker to position themselves to another (Heisterkamp, 2006b). Footing is used in order to demonstrate a collective rather than a personal perspective during the mediation process through the use of 'we' to prevent a particular affiliation and allowing for neutrality to be preserved (Heisterkamp, 2006b). This is realizeed by mediator using the collective "we" to rephrase the points of agreement so that bias or partiality is not reflected (Heisterkamp, 2006b). The use of the pronomialization allows the mediator to distance themselves from their statements and put the ownership on the disputants (Heisterkamp, 2006b).
Another conversation technique a mediator may employ is perspective display series. The purpose of this technique is to allow the mediator to uses a certain series of utterance in order to obtain the disputants' opinions and perspectives (Heisterkamp, 2006a). The process starts off with the mediator inviting the disputants to share their opinion and perspective, followed by the disputant responding and the mediator follows up with further questioning without offering a perspective regarding what was just shared. "Perspective display is most useful when mediators are attempting to uncover the facts of a dispute while trying to avoid affiliation or disaffiliation with a particular disputant (Heisterkamp B. L., 2006a, p. 2059).
"While neutrality is fundamental to the legitimacy of mediation, at the same time it is badly and inconsistently defined, impossible to achieve and demonstrably not practiced by mediators," (Astor, 2007, p. 226) that the recommendation is neutrality be an aspiration, but the driving force during the mediation process be fairness. Even with standards available, there is no specific guidance that is universally agreed to as law in order to provide a firm direction and accountability. Since this is the current situation regarding neutrality in mediation, it would be better to focus on strategies that are tangible and easily identified. The advantage by using the strategies instead of neutrality as a goal is they can be observed and evaluated to determine if the mediator is meeting the desired outcome.
Further studies will need to be considered to determine how the alternative strategies work in various settings in meeting the goal of neutrality and impartiality. If the strategies accomplish this goal, the various associations who develop the standards should consider linking the strategies to the standard in order to provide clearer guidance.
As for mediators working with school districts and families it will be important to establish their role early in the process. They will need to establish neutrality through their introduction and maintain it through the language they choose to use. In this particular situation it will be important to think about the use of "we" to ensure it is not positioning the facilitator with the school district. Even more important will be to maximize the disputants' control and help them locate common ground. This is important in order for the conflicting parties to establish an on-going working relationship and learn how to use the process on their own in the future. According to Taylor (1997, p. 229), "No matter which approach they take, mediators should not be providing undue coercion or they lose the essential ethical premise and the neutral quality of their process.
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