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Impartiality v. Substantive Neutrality: Is the Mediator Authorized to Provide Legal Advice?
Dispute Resolution Journal, Feb-Apr 2007 by Silveira, Mercédeh Azeredo da
Current views of mediation, the mission of the mediator and the debate over mediators providing legal advice.
A sine qua non of alternative dispute resolution (ADR) is the parties' right to self-determination, which in mediation involves the ability to select the mediator and decide whether to agree to a settlement of all or some of the disputed issues. Mediators, lawyers and scholars agree that compliance with the mediator's duty to remain impartial during and after mediation is crucial both for the process to succeed and the parties' rights to be protected. By complying with the duty to remain impartial, the mediator contributes to the betterment of the practice of mediation. As one commentator noted, "mediator impartiality instills trust, enables the parties to collaborate and share information with the mediator and other parties, protects mediation agreements from subsequent challenges, and helps prevent abuses of the process. In addition, an appearance of impartiality promotes public confidence in the fairness of the process."1
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The mediator's duty to remain impartial is one facet of the more general duty to conduct the mediation fairly. Mediators have a continuing obligation, both before and during the mediation, to disclose actual and potential conflicts of interest as they arise.2 A great deal of work has been done by the International Bar Association (IBA) on the types of conflicts of interest that must be disclosed. However, there is less agreement about what impartiality means in general and how the obligation to remain impartial restricts the behavior of mediators. Clearly, at a minimum, mediators must appear to be, and actually be free from bias against or toward any party. In other words, a mediator is not allowed to support one party against the other.3 But does the impartiality requirement also restrain the mediator from offering potential solutions to settle the dispute because any solution would likely be somewhat more favorable to one side than the other? Does it also restrain the mediator from informing the parties about their rights and obligations because doing so could somewhat benefit one party and disadvantage the other?
This article examines current views of mediation and the mission of the mediator. It also looks into the hotly debated issue of whether providing legal advice is compatible with the mediator's duty to remain impartial.
Definitions of Mediation and Impartiality
Some define mediation as "a process in which an impartial third party facilitates communication and negotiation and promotes voluntary decision making."4 Professor Carrie Menkel-Meadow and her co-authors define mediation as "a process in which an impartial third party acts as a catalyst to help others constructively address and perhaps resolve a dispute, plan a transaction, or define the contours of a relationship."5
An effective mediator helps the parties move toward the contemplation of possible solutions and an eventual settlement.6
Impartiality means "freedom from favoritism or bias in word, action or appearance, and includes a commitment to assist all participants as opposed to any one individual."7 The American Arbitration Association (AAA)/American Bar Association (ABA) Model Standards of Conduct for Mediators further specify that "a mediator should not act with partiality or prejudice based on any participant's personal characteristics, background, values and beliefs, or performance at a mediation, or any other reason."8 The practical implications of the mediator's duty to be free from favoritism or bias and to assist all participants to the mediation have been the subject of debate.
The above-stated definition of impartiality undoubtedly prohibits a mediator from imposing a particular settlement agreement on the parties, or compelling them to reach an agreement of their own. But some believe that it does not preclude a mediator from informing the parties of their respective rights and obligations. Others disagree, arguing that "a mediator must not assume the role of legal counsel to either party or both of them jointly [and] must not give advice as to what the law is."9
It is important to recognize that, regardless of whether mediators are permitted to provide legal advice, even the most neutral mediator-that is, a mediator who strictly complies with the duty to refrain from supporting one party against another and imposing an opinion on the parties-inevitably influences the process while trying to move the parties towards a settlement.10 This influence occurs as a result of the mediator's role in:
* establishing the agenda of the mediation;
* managing the communications between the parties during private caucuses;
* managing information exchanges;
* reframing and restating the parties' claims, needs and interests in order to ensure that the mediator understands them;
* determining the seating arrangements at the mediation table;
* setting time frames for various stages of the mediation or for "homework" assignments;
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