Last week’s post explored whether mediation could play a direct role in democratic deliberation. This would involve bypassing politicians to create consensus on social issues. This week’s post explores a more modest proposal. Could mediation help resolve policy impasses among lawmakers?

Tim Kaine, a former Governor of Virginia and Hillary Clinton’s Vice Presidential running mate, proposed this idea in a panel discussion in 2018. Kaine learned the power of mediation as a lawyer and, as Governor, would often bring in trained mediators to resolve policy disputes within government.

Kaine suggests that federal lawmakers could also benefit from mediation. Facilitative mediation aims to avoid positional bargaining and rights-based language in favour of articulating interests. This makes it more likely parties will compromise on their initial positions and reach a mutual agreement.

Mediation among lawmakers could help overcome stalemates in the legislative process. It could also reduce partisanship. Mediation involves listening to the other parties articulate their concerns in a non-adversarial way. This could help foster understanding and common ground across political divides.

However, Kaine also reflects upon why politicians may resist mediation. ‘In policy,’ he explains, ‘there is often a political motive to keep a dispute going than resolve it.’ Politicians benefit from concealing or denying common ground. They use disagreements to raise funds, energise their base and assign blame.

These factors give politicians disincentives to listen to people they don’t agree with. Kaine observes that ‘listening is the lost art in life right now’ and ‘people don’t feel like anybody listens to them.’ Mediators, by contrast, ‘are trained listeners.’ They ‘are trained to find commonalities that people can’t see.’

A further benefit of mediation in politics, as Robert Benjamin notes, could be to encourage a more constructive approach to conflict among the general public. Benjamin argues that ‘[l]eadership style … directly influences the willingness or hesitancy of people to consider negotiation or mediation … in daily life.’

If political leadership values deliberation, inclusion and consensus, then we might expect to see these values throughout the community. On the other hand, if politicians prioritise power over compromise and depict all disputes as zero-sum games, then mediation may be devalued across society as a whole.

Mediation is commonly conceived as a mechanism for resolving disputes that would otherwise be settled through the courts. However, could mediation potentially be used for reaching agreement on other social issues—including those that would be decided by the executive or parliament? A recent interesting article by Richard Schmitt in the Journal of Social Philosophy explores this possibility.

Democratic decision-making is generally associated with the electoral process. Recent discussions have also explored the prospects of deliberative democracy, where elections are supplemented or even replaced by joint deliberation among citizens. Schmitt argues that mediation represents a third possible type of decision-making mechanism that has been neglected in the literature on democratic theory and practice.

Schmitt discusses some examples of groups that rely on mediation to make collective decisions. His main example is the Society of Friends (or Quakers). The Quakers, Schmitt notes, ‘have developed techniques over several centuries which allow groups to deliberate together without the conversation degenerating into bitterness and shouting, instead reaching agreements that meet no opposition’ (233).

At a Quaker business meeting, as Schmitt describes it, members sit quietly until moved to speak. They say their piece, but do not seek to defend their perspective against others. They merely offer it for consideration by the group. Members also do not criticise the viewpoints offered by others. ‘The focus’, Schmitt observes, ‘is not on “giving reasons”’ as is so often the case in deliberative democracy (234).

Members do not raise their voices, interrupt or try to win an argument. Instead, they silently consider what they have heard. At some point, an attempt is made to articulate the consensus of the meeting. Members may suggest amendments to this formulation. At the end, if nobody objects, the consensus will be adopted, not because everyone necessarily agrees, but because ‘no one is deeply troubled by it’ (234).

It is often assumed that unanimity is not possible in democratic decisions. Majority rule is always needed. However, Schmitt argues that the example of the Quakers shows this to be false. It is possible to achieve unanimity, even if not everyone agrees on everything, if the right kind of decision-making process is followed. This also requires, of course, that participants follow shared ground rules in good faith.

The process followed by the Quakers, as Schmitt observes, has much in common with mediation. It avoids rights-based discussions or positional bargaining. Instead, it allows participants to articulate their viewpoints without interruption, then encourages them to reach an outcome everybody can live with. The aim is not for someone to win, like in  court, but for everyone to walk away with something they can accept.

One shortcoming of Schmitt’s article is that his discussion of mediation is a bit out of date. For example, he describes the mediator as a ‘professional neutral’ without acknowledging the current lively debates about whether mediator neutrality is desirable or possible (237). Nonetheless, he captures some of the key features of mediation, such as the role of ground rules and the focus on exploration and option generation, showing their potential application to group decisions.

Mediation generally involves a relatively small number of parties. However, Schmitt argues that it can be applied to larger social groups. He discusses some examples of this, such as an effort by the Centers for Disease Control to reach consensus among 110 stakeholders from organisations with different views on HIV/AIDS. The mediators divided the stakeholders into teams and guided them through a facilitative process. This was successful in producing areas of consensus across the whole group.

Schmitt raises and responds to a possible objection to mediation as a democratic process. The worry is that mediation may be undemocratic, because it involves small groups making decisions on behalf of the whole community (243). Schmitt argues this is not necessarily a problem, provided that the small groups are representative, well informed and transparent. The general public can give feedback and views to the stakeholders directly involved in the mediation.

Schmitt’s response to this challenge, in my view, overlooks another, more radical possibility. What if we think of society not as one big group, but as a collection of many, overlapping smaller groups? If these smaller groups adopted mediation as a way of seeking consensus on specific issues, then one might expect areas of consensus to emerge organically in the community as a whole. (I explore this kind of possibility in my own current work on small justice.)

Could mediation transform democracy? Does it offer a genuine alternative to the electoral process and existing forms of political deliberation? The prospect of mediated outcomes taking over political discourse may seem far fetched in the current political environment with its partisanship, bargaining and rancour. However, mediators have always been innovators and risk-takers. It seems fitting that they could also be the ones to reshape democracy as we know it.

Jonathan Crowe and Rachael Field

Mediation ethics has traditionally given a central role to the notion of mediator neutrality. The idea that mediators are ethically obliged to be neutral, however, has come under increasing attack in recent decades. Numerous scholars have argued that traditional views of mediator neutrality are unrealistic and unhelpful for mediation practice.[1] This is because they overlook the humanity of the mediator and ignore the reality of power imbalances in the mediation process. It is unrealistic for mediators to be wholly neutral, because they are human beings with their own perspectives and biases. Mediator neutrality is also unhelpful to the parties, because it robs the mediator of the ability to intervene actively in the process where needed and ensure that all parties achieve meaningful self-determination.

Some authors, such as Laurence Boulle,[2] have suggested that these criticisms can be avoided by shifting the focus from mediator neutrality to mediator impartiality. It may not be realistic, the argument goes, for mediators to be entirely neutral, but they can and should aspire to be impartial between the parties. This shift from neutrality to impartiality was taken up in the work of the National Alternative Dispute Resolution Advisory Council (NADRAC) and subsequently incorporated into the National Mediator Accreditation System (NMAS) of 2015.

We argue in a recent article, however, that this shift from neutrality to impartiality is unconvincing and lacks practical efficacy.[3] There are two main reasons, in our view, why focusing on mediator impartiality does not solve the problems confronting the traditional paradigm of mediator ethics. The first is that the distinction is too technical to make a real difference in how the mediation process is understood in practice. The distinction speaks perhaps to people who are steeped in the details of mediation terminology, but not to the ordinary party who comes to mediation for assistance with managing or resolving their dispute, seeking a transparent, fair and ethical process. Indeed, for most people, neutrality and impartiality mean the same thing, with the terms often used interchangeably.

The second problem with the distinction between neutrality and impartiality is that the notion of impartiality, as defined by authors such as Boulle, still encounters many (if not all) of the challenges that beset the traditional concept of neutrality. Boulle’s identification of impartiality with fairness, we would argue, is too simplistic. Treating parties with different and complex power dynamics between them in a way that prioritises ‘even-handedness [and] objectivity’,[4] as those terms are usually understood, will favour the more powerful party, in a way that would not be allowed by a genuinely fair process. This is because such an approach will generally entail giving the parties identical or similar treatment, even where they are differently situated or face distinct challenges. The notion of impartiality, in this respect, invites a similar critique to the more traditional idea of neutrality.

It would be possible to avoid this objection to mediator impartiality by interpreting the ideas of even-handedness and objectivity in a more creative and non-traditional way. This would involve saying that mediators can be even-handed and objective even if they treat the parties differently, provided that they do this in an ethically appropriate manner. However, this way of understanding mediator impartiality is of little assistance to mediators and parties in grasping the ethical framework, unless it is supplemented with a more detailed account of when mediator interventions are ethically appropriate. The basis for such an account, we suggest, has to come from some more fundamental ethical notion, rather than from impartiality itself. The idea of mediator impartiality is therefore empty: it either reproduces the traditional problems of mediator neutrality or offers little guidance on the mediator’s ethical role.

Merely shifting the emphasis to mediator impartiality fails to solve the dilemmas posed by the concept of neutrality. A more fundamental rethinking of mediation ethics is needed if we are to avoid the shortcomings of the traditional paradigm.  We suggest in our forthcoming book, Mediation Ethics: From Theory to Practice, that the better approach is to cease to treat mediator neutrality or impartiality as a guiding value of mediation practice, instead emphasising party self-determination. This framework recognises and legitimises the ethical choices mediators routinely make in response to information deficits or power imbalances, rather than seeking to shoehorn them into a modified version of the traditional paradigm.

[1] See, for example, Rachael Field, ‘Mediation and the Art of Power (Im)balancing’ (1996) 12 Queensland University of Technology Law Journal 26; Hilary Astor, ‘Rethinking Neutrality: A Theory to Inform Practice – Part I’ (2000) 11 Australian Dispute Resolution Journal 73; Rachael Field, ‘The Theory and Practice of Neutrality in Mediation’ (2003) 22(1) Arbitrator and Mediator 79; Bernard Mayer, Beyond Neutrality: Confronting the Crisis in Conflict Resolution (Jossey-Bass, 2004).

[2] Laurence Boulle, Mediation: Principles, Process, Practice (Butterworths, 1996) 19-21; Laurence Boulle, Mediation: Principles, Process, Practice (LexisNexis, 2^nd ed, 2005) 30-36; Laurence Boulle, Mediation: Principles, Process, Practice (LexisNexis, 3^rd ed, 2011) 71-80.

[3] Jonathan Crowe and Rachael Field, ‘The Empty Idea of Mediator Impartiality’ (2019) 29 Australasian Dispute Resolution Journal 273.

[4] Boulle, Mediation: Principles, Process, Practice (1^st ed) 19.