Do No Harm, Neutrality, … and a Cold Autumn Morning!

“You look awfully pensive this morning,” said Contra, watching the steam rise off his mug. “Your coffee’s getting cold, Thesia.”

“I heard something in class last night, and now I can’t stop thinking about it.” She glanced at her untouched breakfast.

“What is it? Maybe I can help.”

“Well…” She cast her mind back, trying to remember the details. “The professor was talking about the fundamental principles of Family Dispute Resolution, and she named ‘do no harm’ as one of the three fundamentals — alongside the process being voluntary, and fair and informed self-determination.”

“Do no harm?” Contra looked baffled. “I know all about self-determination, but I don’t recall anything about this ‘do no harm’ idea. Are you sure they weren’t talking about neutrality?”

“I’m pretty sure. I was there, remember?” She raised her mug, content. “And honestly, I like the idea better than ‘neutrality.’ Who can even define neutrality? It’s so subjective.”

“You’re questioning neutrality?” Contra looked at his sister as if she’d questioned gravity. “It’s one of the core principles of mediation ethics. People come into a session carrying all their fears and anxieties. If there’s one thing you can reliably count on finding in a dispute, it’s a lack of trust.” He stood with his arms folded, watching her, all but daring her to disagree.

“I don’t disagree with neutrality, exactly. I just don’t see it as a principle — something so compelling it has to sit at the center of the process.” She kept her voice soft, trying to take the edge off his indignation. “I have serious doubts about how well neutrality and impartiality actually work. There’s a whole literature on this. As Rachael Field puts it: ‘a woman who has survived violence is disadvantaged by a process, such as mediation, which requires that she assert her own interests face-to-face with the perpetrator, in a context where strong intervention on the part of the third-party facilitators would breach their neutrality.’”

“You see?” She was warming to it now. “Especially when the power is uneven, being neutral is taking a side — the side of the stronger party. Don’t you think?”

“It makes sense, but…” Contra thought hard. “Any deviation from neutral makes the mediator look biased, partial to one party against the other. And impartiality is crucial to a just system. Astor says it plainly: ‘the idea that laws and the adjudicators who interpret and apply them are neutral is central to conventional understandings of fairness and justice in western liberal democracies.’ You can hardly ignore that.” He paused, waiting for her to concede.

“I see your point.” She wasn’t convinced. “But what Astor is describing isn’t the issue I have with neutrality in mediation. This is exactly what we talked about last week — the adversarial process. The law was built with that approach baked in. The interpretation and application of the law are neutral, yes, I’m completely on board. But adjudicating between two parties requires both adversaries to enter on roughly the same footing — the same power, knowledge, influence. That’s why they have lawyers. That’s why, if a party can’t afford one, the court appoints one. The point isn’t to keep lawyers employed. It’s to hold the equilibrium of the adversarial process.”

She raised a finger before he could cut in. “And with that balance in place, the adjudicator has to stay neutral — listen disinterestedly, apply the law impartially, decide justly.”

“On the other hand —” she lifted her voice over his attempt to answer — “on the other hand, mediation is not built on the adversarial process at all. It’s meant to be consensual, aimed at a solution both parties can live with.” She stopped, and noticed his silence. “Any thoughts, dear brother?”

“I’m trying to see the connection,” said Contra, unable to shake the feeling she might be onto something. “Suppose mediation isn’t adversarial. Why does that change anything about neutrality?”

“When there’s a power balance between the parties, the odds of a fair process go way up. They hold roughly equal power, and even if they walk in with a win-lose, adversarial mindset, the mediator can steer them toward win-win.”

Contra noticed she’d picked up the salt and pepper shakers and was holding them level, two parties evenly matched. “Novel use of the kitchenware,” he said.

“But what about a power imbalance? Why should that change the mediator’s impartiality? Are you saying they should drop it and back one side against the other?”

“I know neutrality has a long history as a pillar of mediation, and I get that hearing me question it makes you uneasy.” She softened again. “That’s not what I’m doing. My point is this: among the people who come to mediation, a good number are carrying intrapersonal conflicts of their own, on top of the dispute itself. Those people need their mediator to play an active, constructive role — not to sit back as a neutral observer asking the occasional question. Otherwise the risk is that they never reach a genuinely self-determined decision, because they’re drowning in inter- and intrapersonal conflict at the same time.”

“And on top of that,” she went on, “a dispute is an enormously complex system — tangled dynamics, intricate relationships, deep and murky emotions, much of it rooted in values. How is a strictly neutral mediator supposed to connect with either party in any deep, meaningful way — which is the absolute precondition for trust — without putting that neutrality at risk?”

“That’s exactly why we need neutrality,” Contra said. “Mediators can’t be seen leaning toward either party — no inclination, no tendency, and worst of all, no validating of one side’s emotions, which just strengthens their position against the other’s.”

“Hmm.” She seemed to weigh it. “Good point. And I disagree. Being empathetic, understanding, caring — that isn’t the same as being biased. You’ve actually put your finger on one of my main problems with how neutrality gets interpreted. Dealing with deep, value-laden emotion is a minefield. But that’s not a reason to avoid it. It’s a reason for the mediator to be well prepared and highly experienced enough to manage it.”

“The mediator,” she said, “has to acknowledge the emotion on both sides and help both parties build a path forward through it. The more emotional the parties, the more skilled the mediator needs to be. Reaching for neutrality to avoid the emotion is like erasing the question instead of answering it.”

“All right, suppose you’re right,” Contra cut in. “How do you guarantee the process is unbiased and fair? With neutrality gone, it looks like the mediator can tilt it any direction they like.”

“Let me answer your question with a question.” She waved a hand as if wiping an imaginary whiteboard. “Forget everything we’ve said so far. What is the single most important thing in any mediation? What’s the objective of the session — to protect the idea of neutrality, or to reach a just resolution for the parties?”

“To reach a just resolution, obviously,” Contra said. “But the parties have to reach it themselves — that’s what self-determination means — and nothing safeguards that better than a neutral, impartial mediator who doesn’t affect the outcome at all.”

“But they do affect the outcome, Contra. Don’t you see?” She leaned in. “The ‘now-dispute’ becomes the ‘then-solution’ precisely because the two parties go through the process with the help of the mediator. That help is the whole job — especially when the power is uneven. The mediator is there to turn a one-way street into a two-way road: to let information actually flow, and to let learning happen.”

“Valid points.” He raised his hand against any interruption. “However — I’m still not fully convinced. We need to talk about this more.” A beat. “More coffee?”

Works Cited

Astor, H. (2007). Mediator Neutrality: Making Sense of Theory and Practice. Social & Legal Studies, 16(2), 221–239.

Field, R. M. (1996). Mediation and the Art of Power (Im)Balancing. Queensland University of Technology Law Journal, 12, 264–273.