Neutrality in Irish mediation, one concept, different meanings

• Date: 01 March 2020
• Published date: 01 March 2020
• DOI: http://doi.org/10.1002/crq.21273
• Author: Aonghus Cheevers

RESEARCH ARTICLE

Neutrality in Irish mediation, one concept,

different meanings

Aonghus Cheevers

School of Languages, Law & Social

Sciences, Technological University

Dublin, Dublin, Ireland

Correspondence

Aonghus Cheevers, C11118 Henry

Grattan Buliding Extension, Glasnevin

Campus, Dublin City University, Dublin

9, Ireland.

Email: aonghuscheevers@gmail.com

Abstract

The Mediation Act 2017 places mediation at the heart of

the civil justice system in Ireland and protects some of

the key principles of mediation. This article discusses

neutrality, one of these principles. The article shows

how neutrality is discussed by two sets of mediation

stakeholders (clients and mediators). Using two data

sets, the article demonstrates that both groups recognize

the influence of neutrality on the mediation process. At

the same time, the article shows that the manner in

which both groups discuss neutrality is different.

1|INTRODUCTION

In the past 50 years, mediation has become an important part of civil disputing in many

jurisdictions. In a range of settings, governments, judges, and other stakeholders have

viewed mediation as a mechanism to increase the efficiency of court proceedings. In Ireland,

the importance of mediation as a viable and effective alternative to court was underlined by

the Mediation Act, 2017. The effectiveness of mediation, however, is only one part of its

appeal. Mediation is often discussed as a voluntary, confidential, and neutral process where

clients, rather than a judge or other third-party, can resolve their dispute on their own terms.

These procedural elements also allow mediation to attend to procedural justice concerns

(van den Bos, van der Velden, & Lind, 2014). In Ireland, the meaning of these mediation

principles has been developed by mediation stakeholders including government, judges, law-

yers, and mediation organizations. What has been missing from this discussion, however, is

an understanding of how clients view mediation and the principles underpinning the

process.

This article tries to fill this gap. By examining mediation from a procedural justice and a the-

oretical viewpoint and through an analysis of evaluations collected by the Family Mediation

Service (FMS) and a survey of Irish mediators, the article explores how neutrality, an important

procedural justice idea and a mediation principle, is discussed by mediators and clients.

Received: 16 April 2019 Revised: 25 November 2019 Accepted: 7 December 2019

DOI: 10.1002/crq.21273

Conflict Resolution Quarterly. 2020;37:253–272. wileyonlinelibrary.com/journal/crq © 2019 Wiley Periodicals, Inc. 253

The analysis shows that although both groups recognize the influence of neutrality, they use

the concept in different ways.

The article is divided into three sections. Section 1 addresses neutrality. Often identified as a

mediation principle and an important procedural justice concept, neutrality raises theoretical

debate. This section discusses this debate. Section 2 discusses the Irish mediation landscape,

with particular attention to the Mediation Act, 2017. Section 3 analyzes client and mediator

evaluations of neutrality and its place in mediation. This shows that although both groups high-

light neutrality, they emphasize the concept differently.

2|NEUTRALITY IN MEDIATION

2.1 |Neutrality as a concept

Although often recognized as a component of mediation (Law Reform Commission, 2010),

defining neutrality has been problematic. Wolski refers to neutrality and impartiality as,

“imprecise and multidimensional”terms (Wolski, 2002, p. 8). Neutrality meant the mediator

does influence the outcome of the dispute, with impartiality ensuring that the mediator does

not favor either party. Astor (2007) viewed neutrality as including both concepts as mediators

do not take sides or impose their resolution on the parties. She also outlined two further ele-

ments of the concept regarding conflicts of interest and freedom from governmental interfer-

ence. Wing (2008) noted that neutrality was influenced by ideas of symmetry (in procedural

terms) and impartiality.

Cobb and Rifkin (1991) discussed neutrality's meaning emerging, “from a set of interrelated,

interdependent, terms: justice, power, and ideology”(Cobb & Rifkin, 1991, p. 37). In a review of

training materials, mediation texts, and mediator interviews, the same authors identified two

conceptualizations of neutrality operating in the mediation field: neutrality as impartiality and

neutrality as equidistance. Neutrality as equidistance sees the mediator maintain equilibrium

between the parties, at times favoring one party and on other occasions, the other. Neutrality as

impartiality acts as, “a weapon against ideology in mediation’(Cobb & Rifkin, 1991, pp. 41–42).

This also causes practical difficulties as guarding against biases and ideology means monitoring

unconscious processes outside the mediator's control. A mediator who fails to control these pro-

cesses, though, could, “harm the process”(Cobb & Rifkin, 1991, p. 43).

For Mayer, neutrality comprised different elements, “structure, behaviour, emotion, percep-

tion, and intention”(Mayer, 2011, pp. 860–861). Structural neutrality concerns mediator con-

nections and conflicts of interest. Behavior neutrality looks at what a mediator does within the

mediation. How do they manage the process and what actions do they take that might favor

one party? Emotional neutrality concerns impartiality and a lack of bias, something that percep-

tion also deals with, by considering how the mediator's actions are viewed. Intention is what a

mediator tries to do, namely being, “fair …evenhanded, and to act in a neutral manner without

bias”(Mayer, 2011, p. 863).

Mayer also recognized that mediators necessarily affect the mediation process. For this rea-

son, the idea that a mediator's values or knowledge will not influence the process is naïve.

Instead of thinking of neutrality in idealized terms, as a standard that needed to be reached, he

argued that mediators should think about the role they are performing and their, “social

responsibility”(Mayer, 2012, p. 812). Stulberg (2012) went some way to endorsing this idea,

arguing that mediators needed to ensure outcome neutrality, with mediators structuring

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