By Rory Gowers, Transformation Architect and Principal of The Constructive Solution
This article is 1 of 3 within the series and is re-published with permission. The original publication can be found at www.myrespectability.com

Preface

The question of mediator neutrality has been one of the most contested and generative conversations in our field for the better part of two decades. It began seriously with Bernie Mayer’s landmark 2004 work and has since been deepened by the behavioural turn literature, by scholars of genuine distinction, and by the honest frustrations of practitioners who have felt the gap between the ideal and the reality grow uncomfortably wide.

Rory Gowers is a familiar and valued voice in this network – a practitioner with extensive experience in the mediation room who is never content to leave the theoretical debate at the theory level. In this three-part series, published fortnightly on the ADRN Blog, Rory brings that practitioner’s eye to one of our most important unresolved questions.

His answer to whether neutrality should be scrapped is unambiguous. But the argument he makes to sustain it – introducing the concept of role contamination and the LENS framework – is more nuanced, more honest, and more practically grounded than anything I have read on this subject recently.

This first instalment sets out the argument and the stakes. I commend it to you.

Should Neutrality be scrapped once and for all?

There is a conversation that has been growing in mediation circles for the best part of twenty years. It began in earnest with Bernie Mayer’s landmark 2004 book Beyond Neutrality – a loving critique from a practitioner of thirty years who correctly identified that something was wrong with the profession. It has since gathered momentum through the behavioural turn literature, through the work of scholars and professors of genuine distinction, and through the lived frustration of thousands of practitioners who have sat in difficult rooms and felt the gap between the ideal of neutrality and the reality of their own influence.

The argument, distilled to its essence, runs like this: mediators are human beings shaped by bias, culture, experience and unconscious frameworks. Perfect neutrality is therefore unachievable. And a profession organised around an unachievable ideal is building on sand.

It is a serious argument. Made by serious people. And it deserves a serious response.

Here is mine.

Never.

Neutrality should not be scrapped. Not redefined into something more comfortable. Not quietly retired to make room for a more sophisticated account of what mediators really do. Not abandoned because it is hard, or because the academic literature has made abandoning it feel like intellectual progress.

Neutrality, like anything worth holding, is tough at times. That has never been a reason to give up on it.

It wasn’t. It isn’t. The aspiration is the whole point.

Over the series let’s remind ourselves what holding that position looks like in the real world.

Not as theory. As practice. In compensation rooms and construction sites, in cross-cultural complexity and child custody hearings, in the daily discipline of a practitioner who has chosen to put down the professional file and pick up the mediator lens – every time, at every threshold, without exception.

Let’s begin.

Reclaiming Neutrality as Professional Discipline and Fitness for Role

There’s a conversation happening in mediation circles that I find both fascinating and fearful. Fascinating because it’s being driven by some of the most thoughtful practitioners and scholars in our field. Fearful because I think we’ve collectively misidentified the problem.

Let me start with a story.

A colleague of mine – an experienced lawyer-mediator working in compensation – was challenged about a practice she openly acknowledged using. Before the mediation began, the more powerful party had made an unfounded accusation about the other party. My colleague not only accepted this without challenge but defended it when questioned. Her reasoning? It was a legitimate way to lower the psychological ballpark for a settlement before any compensation figure was discussed. When pressed on whether this was consistent with her role as a mediator, her response was untroubled and immediate:

“This is what everyone does.”

I want to sit with that response for a moment, because it is more revealing than any academic paper I have read on the topic of mediator neutrality.

Here was a capable, experienced professional – someone who had sat in tens of mediation rooms, who understood the process, who cared about outcomes – casually describing the deliberate pre-loading of a mediation process against one party as industry practice. Not as a lapse. Not as a compromise she was uncomfortable with. As normal. As competent. As what professionals do.

This is not a neutrality problem in the philosophical sense that currently occupies so much of our professional literature. This is something more fundamental. This is what happens when a profession loses clarity about what its role is – and fills that vacuum with derived practices from adjacent professions that have entirely different purposes. Where is true north?

I’ve started calling it role contamination. And I believe it is a major problem in our field.

Over recent years, a growing body of scholarship – much of it genuinely brilliant – has argued that behavioural science has demonstrated that human beings, mediators included, are shaped by cognitive bias, cultural conditioning, emotional responses and unconscious frameworks. Therefore, the concept of mediator neutrality is not easily attainable and may mask the very influences it claims to prevent. Rooney challenges the traditional concept of mediator neutrality on precisely these grounds (Rooney, 2015). Field and Crowe have also developed well-formed arguments on the topic (Field and Crowe, 2020).

I have deep respect for the scholars making this case. They are right about the diagnosis. And the arguments are serious enough to deserve a serious response – not a dismissal.

As Quek Anderson observes in her careful analysis of Field and Crowe’s work, they contend that the reliance on neutrality in current mediation ethics ‘is unrealistic as it ignores issues such as the reality of the mediator’s power’ and that ‘the demands of mediator neutrality effectively incapacitate mediators from responding dynamically to the needs of individual parties’ (Quek Anderson, 2021, p. 68). Their proposed solution is to replace neutrality with relational self-determination as the primary ethical imperative of mediation practice.

It is a carefully constructed argument. And here is precisely where I part company with it.

Self-determination depends on the parties exercising it. Which means Field and Crowe have not merely relocated the ethical burden – they have redirected it away from the mediator and onto the parties. The mediator’s professional accountability quietly dissolves into the complexity of the relational dynamic.

Neutrality does not permit that dissolution. It sits entirely and uncomfortably on the mediator. No external dependency. No shared accountability. The mediator either held the discipline or they didn’t. Their call. Full stop.

Furthermore, if the problem is that mediators carry bias and exercise influence they cannot fully see or control, relational self-determination is subject to precisely the same limitation. The mediator who judges whether parties are genuinely exercising self-determination – or being dominated – brings all the same conditioning and unconscious frameworks to that judgment. As Quek Anderson notes, the contextual ethical method ‘requires mediators to be trained to recognise and reflect on ethical issues and to develop the ability to exercise professional judgment’ (Quek Anderson, 2021, p. 71) – which is precisely the same professional discipline the neutrality principle demands, now applied to a more complex and less accountable standard.

The problem has not been solved. It has been given a more sophisticated name.

And this is where I want to be direct about what is at stake. A profession that responds to ethical failure by replacing an uncomfortable principle with a more complex one – rather than by raising the standard of ethical practice – is not solving its problem. It is providing more elegant intellectual cover for it. The finest literature in the world, if it ends in a lower bar dressed as a higher principle, becomes precious wrapping paper for corrupt practice.

The answer is not removing the bar. It is raising it.

I am not contending that neutrality is practiced well. The evidence in this series suggests it frequently is not. What I am contending is that it is the only principle that places the full weight of ethical obligation on the mediator’s shoulders – unshared, unredirected, non-negotiable. Not the insurance company’s problem. Not the parties’ capacity to exercise self-determination. Yes, squarely on the mediator’s role.

Without that obligation held firmly in place, mediation is a profession without a moral core. It becomes just another product – a settlement technique on the lawyer’s shelf, efficient maybe, but morally inert. And a society that loses its capacity for genuine human resolution of conflict loses something it will not easily recover.

That is why the bar cannot be lowered. That is why the answer is not a more sophisticated principle. It is greater bench-strength in ethical neutrality practice – the role clarity, the disciplines, the tools, and the professional courage to hold what only the mediator can hold.

That is what this series is about. And it is what we are here to build.

Consider: nobody argues that perfect sterility is unachievable and therefore surgeons should stop scrubbing in. Nobody suggests that because judges carry unconscious bias, they should abandon the aspiration of impartiality. In every serious profession, the gap between the ideal and the achievable is understood not as a reason to lower the standard but as the very revered space in which professional discipline lives and grows.

Neutrality is not a state of perfection to be achieved. It is a professional discipline to be practiced.

Like all professional disciplines it will be imperfectly executed. Like all professional disciplines it requires ongoing self-examination, honest acknowledgment of limitation, and genuine commitment to the role it serves. The fact that it can never be perfectly achieved is not an argument against it. It is precisely what makes it a discipline rather than a simple technique.

So, if role contamination – not cognitive bias, not cultural conditioning – is the root cause, what exactly is being contaminated?

The mediator’s role is not to add value to the outcome. It is not to apply professional wisdom toward the right answer. It is not to be a silent co-author of the resolution. Those are honourable roles in other professions – the lawyer, the counsellor, the consultant, the judge. They are simply not what your core role is in the mediation room.

The mediator’s job – distinct from every other professional role – is to create and safeguard the optimal conditions, context and environment for the parties to arrive at the best outcome from their own thinking and their own framework. Full stop.

When that role is clearly held, the neutrality question largely dissolves. You are not neutral or partial about the outcome because you have no business having a view about the outcome. You are the custodian of the process. The solution belongs entirely to the parties, not you.

A simple question has helped me hold this distinction through more than a thousand hours of mediation practice:

Whose problem is this to solve?

Not mine. Theirs. My problem to solve is creating the best possible conditions for them to solve theirs. The moment I lose that distinction – even with the best of intentions, even with genuine care for the parties – I have left my role and entered theirs uninvited. I have entered the drama triangle and become the rescuer, the persecutor/judge, or aligned with the victim. Whatever role I take up beside neutrality is an abdication of my commission.

The brilliant scholars wrestling with the neutrality question are correctly sensing that something is wrong. But the answer is not to abandon the aspiration or redefine it into something more comfortable.

The answer is to get the role right, and to equip and support each other to develop and sustain this critical capability.

When the role is clear, neutrality stops being an impossible ideal – a perfection shrine that leaves practitioners feeling perpetually inadequate – and becomes a natural consequence of doing your actual job well. Not perfect. Not untroubled. But disciplined, honest, and fit for purpose.

That is the conversation I want to have in this series. What role clarity looks like in practice. What do we leave at the door and what do we bring in. How it holds under the pressure of intercultural complexity. And what genuinely clean outcomes look like when the mediator stays in their lane.

For most people who enter a mediation room, this is not one option among many. It is the last genuinely accessible space for an honourable outcome – with full party agency, minimum financial outlay, and without surrendering their conflict to a system that will decide for them, about them, without them. That is what is at stake when we lower the bar. That is who pays the price.

Whose Decision Is It Anyway?

In the argument thus far, I introduced the concept of role contamination – what happens when mediators import the values, practices and judgments of adjacent professions into a space that requires something fundamentally different. We will now get to the heart of why role contamination is so persistent, and why it matters so much to resist it.

Let me ask you a question. Not a rhetorical one – a genuine one that I’d invite you to sit with before reading further.

Who is in the best position to make the right decision in your life?

Take a moment. Because most people, when they genuinely sit with that question, already know the answer. Not intellectually. Viscerally. The answer arrives before the reasoning does.

And yet – walk into a significant proportion of mediation rooms across the country, particularly in compensation, family, and workplace disputes, and you will find a process quietly organised around a different answer. An answer that runs something like – the professional in the room has access to a quality of judgment that the parties do not, and the process will go better if that judgment shapes the outcome.

That assumption – rarely stated, almost never examined – is the engine of role contamination.

The Expertise Trap

Here is the dilemma that confronts every professional who enters mediation from a specialist background – law, psychology, finance, medicine, whatever the discipline. They have spent years, sometimes decades, developing judgment in their field. That judgment is real. It has value. It has helped people.

And then they enter a mediation room where their explicit professional commitment is to a process in which the parties determine the outcome. The tension is immediate and profound. Because everything in their professional formation is saying – I can see what the right answer is here. But the mediation role explicitly states that is not your call to make.

Most professionals navigate this tension by telling themselves they are being facilitative while quietly, incrementally, steering. The reframe that happens to point toward the settlement they’d privately recommend. The question asked at the very moment most likely to produce a particular response. The silence allowed to sit just long enough to create pressure in a specific direction. None of it conscious. All of it real.

This is the expertise trap. And it is sprung not by bad intentions but by an unexamined answer to the question of who is best placed to decide.

What the Parties Actually Know

Here is what the mediator, however expert, does not know.

They do not know what this dispute has cost the parties in ways that never appear in a brief – in sleep, in relationships, in self-respect, in the story each party tells about who they are. They do not know what a resolution needs to feel like for it to hold. They do not know what the parties will live with five years from now, nor what they will regret.

The parties know all of this. They know it in their bones. And any outcome that is genuinely theirs – reached through their own thinking, in a process that trusted their capacity – carries that knowledge inside it. It fits their lives in a way that an expertly guided settlement, however skilfully constructed, simply cannot.

The mediator who stays in their lane isn’t producing lesser outcomes. They are producing more durable ones.

The Agency Principle and Its Limits

I want to be honest about something here. The principle that individuals are best placed to determine the right outcomes for their own lives is not a universal truth. It is, to a significant degree, a Western cultural inheritance. In many cultures – Confucian, Indigenous, collectivist in various forms – the family, the community, the ancestors, or the collective hold equal or greater legitimacy as sources of the right answer.

And here is something the scholarly literature has been slower to acknowledge. The very framework that has sought to replace neutrality – relational self-determination – carries this same Western cultural address. As Quek Anderson observes in her analysis of Field and Crowe, self-determination in the Western mediation tradition is ‘rooted philosophically in the ideals of democratic participation and personal autonomy’ and ‘may not hold similar dominance’ in non-Western societies (Quek Anderson, 2021, pp. 69, 72). The scholarship that claimed to liberate mediation from one unattainable Western ideal has quietly replaced it with another – the autonomous individual as the primary moral agent – equally invisible to those inside the tradition, equally problematic to those outside it.

The relational self-determination framework, for all its sophistication, is still the gift of the Western ‘Me’ – wrapped carefully, given generously, and received by much of the world as someone else’s present.

Neutrality, properly understood as professional discipline and role clarity, does not carry that same cultural baggage. Its mandate is not to impose a framework of individual agency on the parties. It is to safeguard the conditions for whatever form of wisdom the parties authentically bring. That is a genuinely universal aspiration – not because it has no cultural roots, but because its orientation is always outward, toward the parties, rather than inward toward the mediator’s own tradition.

But – and this is the crucial point – it does not change the mediator’s role. Not one degree. The mediator’s job is to create conditions that allow the parties’ own decision-making process to happen – in whatever form that wisdom authentically takes. The mediator’s cultural template stays at the door along with everything else.

The agency principle, properly understood, is not about individualism. It is about the mediator’s fundamental orientation – toward the parties’ wisdom and away from their own.

A Practice, Not Just a Principle

What works – what has worked for me across more than a thousand hours in the room – is a simple, repeatable act of role recalibration.

Whose problem is this to solve?

Not mine. Theirs. My problem is the process. Their problem is their lives. The moment I feel the pull toward the outcome – the moment I notice myself thinking the right answer here is clearly… – that question brings me back.

Most mediators fail it occasionally. The ones worth learning from are the ones who notice when they’re failing it, name it to themselves honestly, and correct.

That is what professional discipline looks like. Not perfection. Honest, practiced, self-aware commitment to a role that puts the parties where they belong – at the centre of their own resolution.

Author Biography

Rory Gowers is a Transformation Architect and Principal of The Constructive Solution, specialising in intercultural dispute resolution. He holds a Master of Dispute Resolution from UNSW, a Master of Education from UTS, and over 1000 hours of mediation practice. He is Australasian Ambassador for Medianos, the innovative Italian conflict resolution game now available in Australia and New Zealand.

Editor’s Closing, by Milan A. Nitopi

Rory reminds us how critically important neutrality is to a mediator’s role, purpose and overall practice. His concept of role contamination is immeasurably useful and is an invaluable addition to this discussion which clearly illustrates how multidisciplinary professionals can adopt a role or an approach that obscures the traditional ‘pure’ principles of facilitative mediation. However, an important distinction must be laid to recognise that other forms of mediation may require the mediator to adopt a different role or approach.

Rory’s next blog will introduce the instrument that he has developed to hold that boundary: the LENS framework. In that article, he will ask us to look honestly at how smudged our lens has become.

Rory’s question to you: Where in your own practice do you feel the pull most strongly? And, what do you do about it?

Editor Biography

Milan Nitopi is an Australian lawyer, mediator and Family Dispute Resolution Practitioner with a Master of Laws in Family Dispute Resolution (LLM FDR). His passion concerns people, law, and resolution, and he strives to equip people with skills for better communication and dialogue to address all kinds of conflict.