2.1　Neutrality

Mediator neutrality has been studied in such diverse fields as communication, anthropology, sociology, management, and law in the United States.How mediators manage to achieve neutrality while pursuing other goals, the tactics by which they create or lose the impression of neutrality, and the conditions that threaten or enable this impression have all been topics of interest.

Mediators are supposed to be “neutral facilitators of the discussion”(Jacobs, 2002, p.1403).Mediators “view neutrality as their central symbol of their practice”(Harrington and Merry,1988, p.732), “the central to the very definition of dispute mediation and the role of the mediator”(Hale & Nix, 1997, p.337),“a central obligation”(Tracy & Spradlin, 1994, p.117), “of the highest value and concern”and “a fundamental element of the mediator’s role”(Cohen et al., 1999, p.341, 347).The appropriate role and behaviors for mediators is that of “third party neutrals”(Hale & Nix, 1997, p.337).“Neutrality is mentioned no less than 35 times in the professional practice guidelines developed by the Society of Professionals in Dispute Resolution (SPIDR)”(Heisterkamp, 2001, cites from Gibson, Thompson & Bazerman,1996).“Mediation practitioners across almost every context jealously protect their neutrality and independence (as perceived by clients), as these qualities provide mediators their credibility”(Hedeen, 2004, p.107).The fact that a majority of community mediation programs are nonprofit agencies — “eight of nine member centers (89%) were private nonprofit organizations (or agencies of them)”(Hedeen, 2004, p.106) — makes their mediators neutral and independent position possible.

Neutrality has been defined by scholars in many different ways.Laue (1982) indicates that neutrality involves having little or no power over the parties, and paying attention to the process instead of the content.Cohen et al.(1999) states that neutrality“includes a sense of respect, as well as acceptance of naïve curiosity, fascination, and even admiration, for the clients and their perceived problem”(p.342).Cooks and Hale (1994)equivocate neutrality with impartiality.Impartiality has been defined by several professional organizations 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”(Cooks and Hale,1994, p.63).Under the umbrella term of neutral, a number of concepts are embraced including “impartial, nonpartisan,equidistant, unbiased, fair, balanced, even-handed, unprejudiced,equitable, objective”(Jacobs, 2002.p.1406).Tracy and Spradlin(1994) find that mediators engage in conversational strategies to establish bi-partisan fairness.They noted that they do not believe that fairness and neutrality are exactly the same quality, but they are both essential qualities for mediators.Fong (1992) also agrees that neutrality should include the concept of fairness.Therefore,Heisterkamp (2001) proposes that the conceptualizations of neutrality include fairness.

However, numerous scholars also point out that neutrality maybe a “myth”that no mediators can really achieve if they try to settle the conflict from within the mediation session (Jacobs 2002 cites from Cobb & Rifkin, 1991; Dingwall, 1988; Garcia, 1995;Greatbatch & Dingwall, 1989, 1999; Jacobs, 1992; Rifkin et al,1991).Mediators admit that they need to exert strong influence on the parties in order to achieve a good settlement (Bush &Folger, 1994).Silbey and Merry (1986) point out that mediators face paradoxical expectations.When facing such situations as power imbalance between parties or impasse, the mediators have to “take sides”to ensure the quality of the settlement (Jacobs,2002).For example, when one side is obviously weak in power and has problem airing his/her view in the presence of the other party,the mediator may encourage him/her to speak up, give more opportunities to him/her to speak, and sometimes even repeat or help clarify what he/she says.(https://www.daowen.com)

“Mediators must provide for procedural order, clear communication, and informed decision-making, and yet their efforts to regulate, clarify, question, and inform may be taken by disputants to have argumentative impact or to otherwise assert partiality”(Jacobs, 2002, p.1407).Jacobs states, “according to the official ideal of neutrality, they must resist the impulse to agree or disagree with one or the other party, to refute or support positions, to challenge and contradict, or to bolster and confirm”(p.1406).He identifies three tactics that mediators use to achieve the multiple functions of strategic language use: indirect advocacy, framing of advocacy and equivocal advocacy.He argues that by using these tactics, the mediators can achieve their persuasion goals while maintaining the appearance of neutrality.

Heisterkamp (2001) identifies the conversational methods for maintaining neutrality adopted by mediators in community mediation.He finds that mediators display their neutrality by disaffiliating from the disputants through the use of particular conversational methods, including the perspective display invitation and disengaging from disputant information seeking attempts.He also identifies the conversational methods, such as summary, that display mediators’ affiliation with a disputant, and consequently lead to an erosion of neutrality.Other methods include aligning themselves with denigrating comments that disputants made about their opponent, positive assessment.

Jacobs, Aakhus, Aldrich and Schultz (1993) propose that mediators can use at least three idealized models or frameworks of rational resolution of disputes: critical discussion, bargaining and therapeutic discussion.Critical discussion assumes that “the optimal solution to a conflict is to determine the assertion which is most consistent with the available facts and values that constitute the common ground of the engaged parties”(p.10).Therefore, the mediator would “intervene in ways that attempt to improve the quality of arguments and to guide the argumentation in more productive ways”(p.10).In the bargaining model, the optimal solution will be to “find within this zone of agreement that solution which maximizes the gain and minimizes the cost to both parties”(p.14).The mediators in this model will “frequently ask for proposals or will summarize disputant arguments in terms of what they want or are willing to concede”(p.14) The optimal solution of the therapeutic model is to “arrive at a definition of the situation in which each party’s identity claims can be validated and interpreted in ways that do not impinge on the claims of the other”(p.17).The mediators would “treat messages not as assertives which lay claim on the beliefs of all parties, but as expressives which must be acknowledged and affirmed”(p.18).It is assumed that all three models can be identified in Chinese mediation as well.