I read with interest Greg Rooney’s paper on ‘Rebooting Mediation by Detaching from the Illusions of Neutrality, Just Outcomes and Balanced Power’. Rooney is a very experienced practitioner and teacher of mediation. His paper proposes ‘to reboot the profession of mediation by championing the proposition that mediators are not neutrals. They bring their own personal history and professional expertise to the process of assisting parties who are in dispute.’
The reason Rooney gives for rejecting neutrality is that it ‘is physically impossible to attain as a personal attribute for a mediator or a practitioner in any other profession or field.’ This is, of course, not a new point: scholars have been critiquing the notion of neutrality in mediation for some time. However, Rooney builds on his rejection of neutrality to offer some interesting insights about the role of intuition in guiding mediation practice.
I agree with Rooney that neutrality is not a helpful ideal to guide mediation practice and ethics, although I think he sometimes overstates the point. For example, he contends that efforts to balance neutrality against other aims of the mediation process are flawed because ‘you cannot be half neutral or unbiased in the much the same way as you cannot be half pregnant. You are either neutral or unbiased or you are not.’
However, even if the ideal of absolute neutrality is unattainable, it is surely true that some mediators are more neutral or unbiased than others. A mediator who deliberately and openly intervenes in the process to favour one party is likely to be less neutral than one who tries hard to be balanced, even though both will be influenced to some extent by personal biases. Neutrality, then, is potentially a matter of degree.
The point remains, however, that the ideal of absolute or pure neutrality is not a helpful practical guide for mediators in shaping their practices. A similar observation applies to the ideas of just outcomes and balanced power. Some outcomes are more just than others and some power dynamics are more unbalanced than others. Mediators can sometimes influence these variables in helpful ways. However, the pure ideals of absolute justice and absolute power balance are unlikely to be helpful guides to mediators in practice.
Rooney helpfully observes that mediation is both dynamic and diachronic (my terms, not his). The mediator herself influences the dynamics between the parties, which are constantly shifting over time. This means that ideals such as neutrality ‘have to be assessed within the context of the fluidity of moment to moment events’. This is another reason why a perfect state of neutrality or balanced power is unattainable in practice.
The misleading focus on neutrality in mediation, Rooney argues, has led to a model of mediation training where the focus is on guiding or transforming the parties rather than on developing the mediator’s own capacity for self-awareness. Rooney suggests that more attention should be paid to how mediators make decisions about how to behave. Mediators should cultivate their capacity for mindfulness and self-reflection.
‘The first step’ in this process, Rooney argues, ‘is for practising mediators to be conscious of what they are thinking’. Another way of putting this might be that mediators should develop their capacity for reflexivity: the ability to recognise one’s subjectivity and viewpoint when assessing a situation. Rooney describes the self-aware mediator as entering a ‘state of reverie’ where she can draw intuitively on knowledge from past experiences.
The underlying point here – leaving aside Rooney’s excursions into Buddhist philosophy and The Legend of Bagger Vance – is to highlight the central role of intuition in shaping mediation practice. Intuition, Rooney notes, ‘can produce a rich source of data which is immediate and specific to the parties at that particular point in time’. Intuitive judgments, then, are tailored to particular cases in a way that general principles and values cannot be. These judgments can then form the basis for further self-reflection and refinement of practice.
The role of intuitions in mediation ethics was a central focus of my recent article on ‘Ethics and the Mediation Community’ in the Australasian Dispute Resolution Journal. I have also explored the role of intuitive judgments in law more generally. I agree with Rooney that this represents an important and neglected focus of mediation research. It is heartening to see sustained and insightful reflection on this issue by such an experienced mediator.
Jonathan Crowe, ‘Ethics and the Mediation Community’ (2015) 26 Australasian Dispute Resolution Journal 20
Jonathan Crowe, ‘The Role of Contextual Meaning in Judicial Interpretation’ (2013) 41 Federal Law Review 417
Jonathan Crowe, ‘Pre-Reflective Law’ in Maksymilian Del Mar (ed), New Waves in Philosophy of Law (Palgrave Macmillan, 2011)