Impartiality v. Substantive Neutrality: Is the Mediator Authorized to Provide Legal Advice?

35 Marjorie Corman Aaron, "ADR Toolbox: The Highwire Act of Evaluation," 14 Alternatives to the High Cost of Litig. 62 (May 1996). It is interesting to note that a quantitative analysis, conducted in 2004, using a database of 645 cases mediated at the Equal Employment Opportunity Commission, indicated that where facilitative techniques were used, the parties were more likely to perceive the mediator as being neutral or fair. E. Patrick McDermott & Ruth Obar, "'What's Going On' in Mediation: An Empirical Analysis of the Influence of a Mediator's Style on Party Satisfaction and Monetary Benefit," 9 Harv. Negot. L. Rev. 75, 98.

36 Maureen L. Laflin, "Preserving the Integrity of Mediation Through the Adoption of Ethical Rules for Lawyer- Mediators," 14 Notre Dame J.L. Ethics & Pub. Pol'y 479, 498; see also Aaron, supra n. 35, at 62.

37 Moore, supra n. 17, at 689.

38 Menkel-Meadow et al., supra n. 5, at 270.

39 Laflin, supra n. 36, at 499; John Forester & Lawrence Susskind, "Activist Mediation and Public Disputes," in When Talk Works: Profiles of Mediators 328, 329, 331, 332 (Deborah M. Kolb et al. eds., 1994).

40 Murray S. Levin, "The Propriety of Evaluative Mediation: Concerns about the Nature and Quality of an Evaluative Opinion," 16 Ohio St. J. On Disp. Resol. 267 (2001).

41 Moberly, supra n. 24, at 672.

42 Bickerman, supra n. 29, at 70. See also Larry Watson, A Time and Place for Evaluative Mediation, paper delivered to the American College of Civil Trial Mediators in Orlando, Florida (March 1, 1997).

43 Lawrence Susskind, "Environmental Mediation and the Accountability Problem," 6 Vt. L. Rev. 1 (stating that "to be effective, [a] ... mediator will need to be knowledgeable about the substance of the disputes and intricacies of the regulatory context within which decisions are embedded"). This article deals specifically with environmental mediation. However, I believe that the principles cited ought to be extended to other types of mediation.

By Mercédeh Azeredo da Silveira

The author is an attorney-at-law at Schellenberg Wittmer in Geneva, Switzerland, specializing in international arbitration. She holds an LL.M. from Columbia Law School. Ms. Azeredo da Silveira can be reached by phone at +41 (0) 22 707 8000 or by email at Mercedeh.daSilveira@swlegal.ch.

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