14 Jan Neutral Does Not Mean Passive
A distinguished neutral need not be an extinguished neutral because being neutral does not require being passive. Yet, professionals have confided in me that they thought a good mediator is not wholly neutral. As explained in a variety of ways, they mistakenly thought that affirming strengths and challenging weaknesses was a form of bias. I am reminded of some novel cases in law school about mens rea without actus rea.
The confusion is understandable given our use of the word neutral and its derivatives. We use working definitions which define a means to neutrality rather than directly defining the word. Try this at your next family get together: keep your opinions to yourself and don’t make any facial expressions. You may be as neutral as Switzerland but you may draw the wrong conclusion that neutral manes disengaged.
Even Black’s Law Dictionary’s first two definitions of neutral, indifferent and refraining from taking sides, speak to the means rather than the content of neutrality. Its in the third definition, impartial; unbiased, that the word is more directly defined and better defined for its application to the rules for mediators.
Rule 10.210 Mediation Defined
Mediation is a process whereby a neutral and impartial third person acts to encourage and facilitate the resolution of a dispute without prescribing what it should be. It is an informal and non-adversarial process intended to help disputing parties reach a mutually acceptable agreement.
Rule 10.210 of the ADR Handbook states that a mediator acts to encourage and facilitate the resolution of a dispute. This does not describe acting passively. The neutrality requirement is found in without prescribing what it (the resolution) should be. That being proactive does not create bias is stated even more clearly in the rule that follows.
Rule 10.220 Mediator’s Role
The role of the mediator is to reduce obstacles to communication, assist in the identification of issues and exploration of alternatives, and otherwise facilitate voluntary agreements resolving the dispute.
The ultimate decision-making authority, however, rests solely with the parties.
Again, the mediator’s role is defined as a proactive one to reduce, assist, explore, and facilitate. And the neutrality requirement refers to decision-making authority. The corresponding statute states nothing to dispute this point of view.
Florida Statute 44.1011
(2) “Mediation” means a process whereby a neutral third person called a mediator acts to encourage and facilitate the resolution of a dispute between two or more parties. It is an informal and nonadversarial (sic) process with the objective of helping the disputing parties reach a mutually acceptable and voluntary agreement. In mediation, decisionmaking (sic) authority rests with the parties. The role of the mediator includes, but is not limited to, assisting the parties in identifying issues, fostering joint problem solving, and exploring settlement alternatives.
Again, the mediator is defined as neutral but that neutral is again described as one acting, not refraining from acting. And the mediator is not described just with one action word, acting, but also with the words, helping, assisting, identifying, fostering, and exploring. And again the neutrality requirement is relegated to decisionmaking (sic) and authority.
Mediators, despite some misconceptions, do not have to be passive to be in strong adherence to the governing rules. Some, most assuredly, are misinformed about this. The problem with that misconception is that it can cause some to lose confidence in the mediation process. Rule 10.600 of the ADR Handbook imposes a duty on all of of us.
Rule 10.600 Mediator’s Responsibility to the Mediation Profession
A mediator shall preserve the quality of the profession. A mediator is responsible for maintaining professional competence and forthright business practices, fostering good relationships, assisting new mediators, and generally supporting the advancement of mediation.
We should correct any misunderstanding that could reflect poorly on the mediation profession. And a belief that mediators are not following all the rules should concern us all.