by Xavier Velasco Suárez

Graduate Program In Dispute Resolution
University of Massachusetts Boston

 Running Head: THE RELATIONSHIP BETWEEN NEUTRALITY AND JUSTICE

According to philosopher Gilbert Harman (1977), moral nihilism is "the doctrine that there are no moral facts, no moral truths, and no moral knowledge" (p. 11). This is the dividing line between ethical theories. The downright acceptance of the existence of moral facts, moral truths and moral knowledge will locate a theory on one side of the line. All sorts of moral relativisms will be situated on the other side, whether more or less inclined to the nihilist extreme.

There is a subterfuge for nihilism that is called agnosticism, which basically holds that it does not denies the factual existence of moral truth but only the possibility of its knowledge. Almost needless to say that this is not anything but an euphemism. Why, if the possibility of attaining the knowledge of something is denied, we do not need to strain our brains too much to understand that denial as equivalent to banishing that something to the reign of theoretical and useless hypothesis. And ethics is eminently practical. Moral cannot be understood but as orienting human behavior. A purely theoretical ethics is simply a contradiction in itself.

Nevertheless, this moral agnosticism holds such a sway with people nowadays that even Arras and Steinbock (1995), who make a brilliant and pitiless criticism of moral nihilism, do not find themselves completely free from a moderate agnosticism, when stating that "complete coherence –a total seamless system of morality– is most likely beyond our grasp" (p. 39).

Mediation’s world is not an exemption to this rule of moral agnosticism’s influence. We can see that, specially in the endeavor to elaborate a concept of neutrality as a struggle to avoid any influence on the outcome. Since nobody can be sure about the truthfulness of any moral knowledge, it ensues that every mediator should carefully refrain from influencing an outcome from a ‘subjective’ ethical perspective lest his/her point of view is not the correct one.

I am of the belief that there are two different groups of conflicts, taking into account the disputants disposition: 1. The dispute arises because of a problem of communication; 2. The dispute arises either because of a matter of justice or because of a matter of perception of justice.

It is almost useless to point out that this distinction is very closely related to the understanding of the concept of Mediation and neutrality in mediation. Therefore I will analyze these concepts and thereafter, I will try to consider the issue of the neutrality and influence of the mediator in the two different groups of conflicts as described supra.

It has been said that Mediation is a means of dispute resolution. But what is dispute and what does it mean to resolve it? This will lead to the point that Bush and Folger (1994) criticize of the "problem-solving" approach to mediation as predisposed to settlement.

To begin with, I would rather say that Mediation is more a tool to continue a negotiation that has reached an impasse which the parties feel unable to break through than a tool for resolving disputes. From this perception of mediation as an instrument of negotiation, the dispute is not the central issue, but the relationship between the disputants and the success of their capacity to find a good end to the dispute, which is also related to Bush’s idea of ‘recognition’ (Bush, 1989). Whereas the goal of negotiation is the agreement, the goal of mediation is not the agreement but the negotiation process that usually leads to it.

In the common and quick language of the "art and science of negotiation" we may consider the word "problem" as a synonym of "dispute" (Raiffa, 1984). The problem can be a dispute, but not necessarily. Yet, a dispute is always a problem to be solved.

When the problems are of the kind that need the consent of at least another person to be solved, people usually negotiate, whether they realize it or not, engaging in a "process of joint problem solving" (Fisher & Ury, 1981). But if they have engaged in a negotiation with someone else, it is only because they think they have reconcilable interests. When they stop thinking that way, the problem becomes a dispute. There is an interest to get something and this same something falls -or at least it is believed to fall- within the interest of someone else. There is something in dispute, and the negotiation fails or goes into an impasse.

It can also happen that, although they realize the necessity of someone else's consent, they might firmly believe that they either have a right to that consent and urge upon it or that their interests are radically irreconcilable. In both cases they are most likely to refuse to negotiate and turn to a third party, call it judge, arbitrator or mediator. This third party can settle the dispute by itself or help the parties in dispute getting them to keep on negotiating or to start doing so. The latter is certainly the case of the mediator and the essential difference from the other two kinds of 'third parties' will stand on the fact and the commitment that he or she will not keep control over the decision of the dispute. As long as the process leads to a settlement decided by the parties it is mediation. If the mediator takes part in the decision the process ceases to be a mediation, and the mediator is no longer mediator.

As a human being any mediator has his or her own feelings, beliefs, values. Even the notion of justice may vary -and it varies, as a matter of fact- from one person to another, despite the desirability of having a broad concept accepted by a majority of people.

Moreover, the mediator's very perception of what is fair in a given case changes from one person to another, and it can also change within the same person from one case to another. 'Freedom' is written in the core of the human nature, and that freedom allows the person to change his mind and to regret past decisions and behaviors. "How wrong I was!", is an expression that can only be heard from a free creature. As far as they can change their own beliefs, values, feelings, and opinions because of that free nature, also because of it they can also hold them.

The existence of those feelings that contribute to shape a person in his or her individuality, is called 'anxiety of influence' by Bush and Folger in the book previously cited. Even though they describe it as the "inevitable tendency to influence" (my italics), as far as mediators are persons, they are free. That freedom enables them to disobey the order of any of their tendencies, no matter how strong they are. Only if we talk about the inevitability of the presence in the mind of that tendency, I could agree with the authors of the book. But that presence does not mean that it is not possible to act against it, as well as it is not impossible to act against any other of the human tendencies whether they are considered good ones or not. It is not of my interest whether their presence is avoidable or not: in either case you can choose to follow them or to reject them. My real concern, my main question is: Should mediators refrain from exerting any kind of influence in any context? Even more: Is the actual influence incompatible with the idea of neutrality?

Neutrality is not an exclusive characteristic of the mediation institute. Judges and arbitrators must be neutral too. Neutrality is not only a "concept central to the theory and practice of mediation"(Cobb & Rifkin, 1991, p. 36), but also a crucial element in both the arbitral and judicial processes. The concept of neutrality is often very related to the concept of influence.

Both the judge and the arbitrator are by no means concerned in using their "influence to make sure that the parties maintain control of decision or outcome" (Bush & Folger, 1994). Much on the contrary, it is of their concern to keep thoroughly the control on the outcome, and nevertheless I do not think that anybody would dare to say that they should not be neutral. Of course, the mediator is not a judge, nor an arbitrator, and I already said that he or she must not take part in the decision. But this does not mean that he or she cannot influence that decision. He is a man, with his own convictions about many issues, which include justice. If he has a certain belief it is because he thinks it is right, and he thinks he is right. (There is a kind of complex to be right in our modern times. We are afraid of being right, because there is a tremendous trend to make us believe that it is wrong to be right, and that it is even more wrong to say it, but we cannot help having convictions).

If the mediator is in disposition to influence a decision that could be unfair (unfair from his "views of fairness, optimality", of course!) why should he or she refrain from doing so? In the name of who? Of the neutrality? Yet, they would only be "influencing" an outcome whereas a judge or an arbitrator would be "deciding" it, and they are still neutral. In this sense, I agree with Cobb and Rifkin when they "describe neutrality as a discursive practice that actually functions to obscure the workings of power in mediation, and forces mediators to deny their role in the construction and transformation of conflicts" (Cobb & Rifkin, 1991-36). Otherwise, the notion of neutrality as non-influential or as value-free would end up shaking hands with the moral relativism so well criticized by Arras & Steinbock (1995).

The second group of conflicts are of a kind that makes them extremely difficult to be mediated, just as the first group is of the kind that makes them the most likely to be mediated successfully. I believe that the first group are, hopefully, the more frequent ones.

There is always a matter of justice involved when we talk about relations between people. There are situations in which, although there is a question of justice involved, that is not the core but rather communication. These are situations in which there is a wide range of possible solutions, all of them perceived as fair by the common sense of people. That range is usually given by what was called ZOPA (Zone Of Possible Agreement) in which extremities the reservation prices of the parties are located (Raiffa, 1982). With this I am saying that there is a zone of possible agreement, and therefore there is a range of fair solutions from which the parties -whether with the help of a third party or not- will most likely choose a final solution.

In these cases the work of the mediator becomes greatly a function of facilitator of the communication, helping the parties to recognize that ZOPA. Sometimes -maybe more than we believe– negotiations break down or go into an impasse because either of the parties -or both- believe that there is not such zone of possible agreement, and this is always a result of a deficiency in the communication. The work of the mediator will be to realize this problem -which is not always the easiest part- and identify where the communication failed. Most likely, when the communication is restored, the main job of the mediator has successfully ended. The parties already know that there is a ZOPA, and they are now able to reach a settlement.

When a mediator is called as a third party in a conflict like this his or her perception of the problem will probably be very favorable and optimistic. There should not even be the opportunity for the mediator to exert an influence that predisposes the parties to terms of settlement that comport with the mediator's views of fairness. And the reason is simple: in such cases it is most likely that mediators, because of the nature of what is under dispute, even until the end of the process are not able to make up their mind about the fairness of this or that outcome. They might have a feeling about it but seldom a firm conviction. In my opinion, as long as they do no have that firm conviction about the fairness of the case, they must abstain very carefully from any kind of influence, whether on the parties or on the settlement itself, allowing the normal mechanisms of the negotiation process do their job, even the one that tends to engender moral growth (Bush & Folger, 1994).

But a quite different feeling may come to the mediator.

The second kind of conflicts that a mediator can possibly face are the ones in which the core is not the communication but the justice as well as the perception of justice. In these cases there is often a first impression that comes to the mediator's mind once he or she is steeped in the intricacies of the problem. It is a first feeling about who is right and who is wrong in the dispute, and this does not only apply to mediators, but also to judges, arbitrators and in general to anyone who happens to witness the conflict. This feeling can stay the same throughout the process, but it can change, and this is the reason why one –mediator, judge, arbitrator or whoever– has to be very careful about being led by this first impression.

In the cases where third parties are required to say the last word, say to settle the dispute –judges and arbitrators–, they will have to test this first impression at their best, proving it, contrasting it against someone else's impression and against the precedents and the law, to finally look for sound reasons to found the final decision. When a mediator is called in, things are different. How different they are is a question that I will try to answer hereafter.

Independently from the question of neutrality, mediators have their own perception of the fairness about the case to which they were called. Sooner or later they will experience that feeling about the justice of either of the parties. At this point, they are also likely to realize another distinction: either one or both of the parties may not mind at all about fairness, only willing to win the dispute. If both parties do not care, then the mediator is doubtlessly facing the most difficult of the cases, and the easiest thing to do would be to walk out of the case and refer the parties to an arbitrator or, more likely to a judge. He or she does not have to worry either about an unfair outcome nor about whether he or she has to influence it or remain neutral instead. This because of a simple reason: an outcome is hardly likely to happen. (Who knows if his or her best job in such a case will not be to prevent the parties from reaching any agreement! There would not be much work to do anyway). A strongly experienced mediator could try the chance of persuading the parties about the advantages of taking justice seriously into account. Thus, he or she would be contributing to a certain moral growth, albeit different from the kind of moral growth Bush and Folger talk about in their book.

If only one of the parties does not care about the justice of the outcome but only about getting the bigger share of the pie, things are slightly different. A distinction is due to this point: the mediator's attitude and the outcome itself will greatly depend on how the power is distributed between the parties.

The more powerful is the ‘justice-minded’. If the power scale inclines towards the side of the justice-minded, the lack of justice sense can balance the lack of power on the other. Hence, the work of the mediator should be to make the justice-minded side realize its power and use it in the negotiation process toward a fair outcome. Here we could think of a moral developer role of the mediator in the sense that his or her job can help to adjust the ethical sense in one of the parties and to sow the seed of the sense of fairness in the other.

I don't see this case as one able to be a very good field for the "transformative potential" of the mediation in relation to the so called empowerment and recognition effects (Baruch Bush, 1989). Maybe the mediation process could help the justice-minded side not to hesitate when the power has to be used in pursuit of a fair outcome, and thus the "empowerment effect" would realize to at least one of the parties. About the "recognition effect" in relation to the same side, we should assume that it already possessed that power of "evocation of acknowledgment and empathy for the situation and problems of others" (Baruch Bush & Folger, 1994), in such a degree that it went to mediation instead of using its power to impose a fair solution (maybe this is a case where the recognition effect has to be lowered, as it was already too remarkable. In the end, there has to be a middle fair point!).

The more powerful does not care. The opposite case is much alike to the example of Henry Kissinger and the lion lying down locked in a same cage with a lamb (Colosi, 1986). Of course the lion is the empowered side with no interest in justice, and the lamb is the weaker justice-minded side. Perhaps the first advice to give in such a situation is not to leave them alone in a same cage. However, this would be possible if there was the opportunity of having them negotiate by themselves, and if he could do it without deceiving the trust of either party, the mediator should warn the weaker party about the risks of negotiating alone with such a counterpart, without being very well prepared. The role of moral-improver will take place only if the powerful party allows the mediator to accomplish that role, and the best efforts of the mediator should head toward the achievement of the goal that will consist of the consequent consent.

The first concern of the mediator in these cases should be to find out what the real feelings of the parties are. The purposed unfairness of both or either parties is seldom evident, and so the mediator will have to work it out. The work in pursuit of the allegedly major goal of mediation, the moral development which realizes mediation's "unique potential for transforming people" in Baruch Bush’s words, becomes crucial when the mediator realizes that there is in both sides a real interest in fairness, albeit in fact their concepts of fairness differ. There could be, of course, a third concept: that of the mediator.

Going back to the "transformative potential" of mediation let us say that there certainly exists that potential, latent underneath the entire process and its very notion. Both empowerment and recognition are very desirable effects that come along with the idea of mediation, as long as the mediator keeps its function as mediator, being always mindful of not deciding instead of the parties. I can understand why Baruch Bush calls this "moral improvement".

As far as I believe there is no possible ethical progress without freedom, since freedom is essential to the human behavior to which the moral can only be applied. A moral truth becomes bastardized when someone tries to impose it. Moral truths can be posed, but not imposed. Paradoxically, immoral would be that who tries to impose a moral truth. For the same reason, a behavior that does not stem from an internal free disposition, but it is just driven by an external imposition, cannot be ethical either.

Insofar as people who engage in mediation have gained in self-confidence about their own capacity –not in the mediator’s capacity to transform them, though– to decide the acts to be accomplished by themselves in following their goals as they are known by their own minds ("the restoration to individuals of a sense of their own value and strength and their own capacity to handle life's problems"), there will have been a growth in freedom and, therefore a moral growth.

But not less true is that there is no possible moral growth without an ethical scale of reference which is unthinkable from a skeptical, agnostic, relativist, nihilist stand point. All of what I stated in relation to the parties, I think that perfectly applies –and must apply– to mediators. Neither to them, an ethical scale, or code, must be imposed, but posed. Only on that basis they are enabled to contribute to everybody else’s moral growth. Freedom in human nature calls for the individual conscience to be the liminal judge of each concrete action’s morality.

Therefore, any code of ethics should be founded on these ground rules: 1) moral facts happen, moral truths exist, and moral knowledge is possible; 2) there is no possible moral growth without freedom: moral truths can be posed, but not imposed; 3) mediators must be allowed to ‘pose’ their moral convictions; 4) mediators should refrain from ‘posing’ their convictions when they do not have a firm conviction about the justice of the case; 5) mediators must never refrain from ‘posing’ their convictions when they do have a firm conviction about the justice of the case; 6) mediators must be concerned about the justice of the outcome: neutrality does not mean disinterestedness regarding justice, but much on the contrary, attachment to it.

Arras, A. D., & Steinbock, B. (1995). Introduction: Moral reasoning in the medical context. In A. D. Arras & Steinbock, B. (Eds.). Ethical issues in modern medicine (4th ed.). Mountain View, CA: Mayfield Publishing Co.

Baruch Bush, R. A. (1989). Efficiency and protection, or empowerment and recognition?: The mediator’s role and ethical standards of mediation. Florida Law Review, 41(2).

Baruch Bush, R. A., & Folger, J. P. (1994). The promise of mediation : responding to conflict through empowerment and recognition.(1st ed.) San Francisco, CA : Jossey-Bass.

Cobb, S., & Rifkin, J. (1991). Practice and paradox: Deconstructing neutrality in mediation. Law and Social Inquiry.

Colosi, T. R. (1986). On power in Mediation. New York, NY: American Arbitration Association.

Fisher, R., & Ury, W. (1981) Getting to Yes: Negotiating Agreement Without Giving In. (2d. ed.) New York, NY: Penguin Books USA Inc.

Harman, G. (1977). The Nature of Morality: An Introduction to Ethics. New York: Oxford University Press.

Raiffa, H. (1982). The art and science of negotiation. Cambridge, MA: The Belknap Press of Harvard University Press.