Should Neutrality be scrapped once and for all? (Part 1 of 3)

Posted on 05/03/2026 by rorygowers

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 important neutrality is to a mediator’s role, purpose and practice. His concept of role contamination is an invaluable addition to this discussion illustrating how multidisciplinary professionals can adopt a role or approach that obscures the traditional ‘pure’ principles of facilitative mediation. However, an important distinction must be drawn to acknowledge 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.

The “Behavioural Turn” in Mediation: Rethinking Autonomy, Choice and Ethics

Posted on 12/02/2026 by Lisa Toohey

This post summarises and reflects on ideas first developed in the co-authored article, “The ‘Behavioral Turn’ in Dispute Resolution: Implications for Mediation Theory and Practice”, originally published in the Ohio State Journal on Dispute Resolution 41(2) (2025).

Across many disciplines, behavioural insights have transformed how we understand human decision-making. Psychology, behavioural economics, and social neuroscience increasingly reveal the extent to which human choices are shaped by cognitive biases, stress, fatigue, emotional load, social norms, and the framing of options. In a field such as mediation, which has long placed party autonomy and self-determination at its heart, these insights have (and will continue to) be transformed by these behavioural insights.

What is the “Behavioural Turn”?

The “behavioural turn” refers to a shift towards scientific explanations of human behaviour that highlight how decisions are influenced by context, environment, and cognitive processes rather than by unfettered individual choice. Much of this is familiar to mediators, reflecting many of their existing practices and enriching rather than disrupting existing practice.

Concepts such as confirmation bias, priming, loss aversion, and the endowment effect describe patterns practitioners see daily in the negotiation room. Neuroscience gives additional insights, showing how stress and heightened emotion increase reliance on mental shortcuts, making it harder to engage in the type of rational, future-orientated decisions that resolve disputes.

These theories help explain why tools such as reframing, structured processes, and careful management of tone and environment have been such effective skills for mediators to help guide participants towards management of conflict.

Beyond the Toolkit: Theoretical Implications

Behavioural insights do also have implications for mediation theory – challenging some of mediation’s foundational assumptions, particularly voluntariness, neutrality and autonomy. (See also the fantastic post on this blog by Jon Crowe and Rachael Field).

New behavioural knowledge challenges the idea that mediation can be a purely voluntary process in which the mediator is a neutral facilitator. Behavioural determinism also raises the question of whether mediators can ever truly “stand back” and avoid influencing outcomes. Mediators have multiple tools at their disposal to nudge or encourage the parties’ choices through subtle cues, phrasing, or tapping into or triggering particular cognitive biases.

“The ‘behavio[u]ral turn’ prevents us from naively accepting the convenient fictions of mediator neutrality and participant autonomy within conflict resolution activities.”

Rather than undermining mediation, this shift calls for a reassessment of its ethical foundations. We suggest a “compatibilist” understanding of autonomy. This recognises that people act with a sense of agency even when choices are shaped by antecedent factors, and we believe this offers a more realistic and conceptually honest approach. It also acknowledges that mediators inevitably influence the process, and foregrounds that this influence carries ethical responsibilities.

The Ethical Challenge: What should mediators do?

There is plenty of scope to use behavioural insights in a positive way: reducing cognitive load, supporting informed decisions, minimising the impact of bias, or helping parties regulate strong emotions. But they can also be misused. Poorly designed processes or overly directive behaviours can prime parties towards settlement in ways that privilege efficiency over genuine engagement or fair outcomes.

This highlights the need for a strengthened ethical framework. Approaches grounded in contextual and relational ethics offer a way forward and are developed in the work of Field and Crowe as well as Zhao and Hardy and Rundle. These frameworks see self-determination not as atomistic independence, but as relational participation supported by the mediator’s awareness, reflection, and transparent engagement with ethical considerations.

Conclusion

The behavioural turn may ultimately shift how we see the mediator, moving away from the dated idea of a “neutral helper” to a skilled conflict specialist who guides, coaches, and supports parties in understanding their own responses to conflict. This reframing aligns with long-standing critiques of neutrality and may offer a more coherent account of the mediator’s real work.

At the same time, new behavioural insights remind us to be vigilant. Without a robust ethical foundation, behavioural tools risk becoming mere techniques of persuasion. We should instead be using them to gain a richer, more honest account of how humans make decisions, and using them to support parties in mediation in an ethical way.

As we say in our article:

“Behavio[u]ral insights hold particular appeal for people whose daily work is the business of managing conflict… yet they also present an interesting dilemma for the mediator’s professional identity as an agent of self-determination.”

Behavioural insights do not diminish the value of mediation. Rather, they invite deeper reflection on its philosophical underpinnings and ethical commitments. The challenge ahead is to articulate frameworks that acknowledge influence without slipping into a mechanistic view of human conflict (one where conflict experts can simply push human ’buttons’ or nudge towards outcomes).

What we need is to embrace a more nuanced understanding of autonomy and redefine the core theories of mediation to reflect new scientific insights.

This conversation, already underway within mediation communities of practice and scholarship alike, is one of the most important that we as dispute resolvers can have.

Full text of the article in the Ohio State Journal on Dispute Resolution is in the PDF below.

Toohey Behavioural Turn.pdf Download

The Role of Intermediaries in Enhancing Access to Justice in ADR

Posted on 23/12/2024 by Dr Oz Susler

Dr Oz Susler & Dr John Taggart

Introduction

Over the past thirty years, there has been a ‘sea change’ in the treatment of vulnerable court and tribunal users in the United Kingdom. As noted by Lady Justice Hallett in the case of R v Lubemba: ‘Advocates must adapt to the witness, not the other way round.’ Formal rules now place a duty on judges in both civil and criminal cases to ensure that ‘every reasonable step’ is taken to facilitate the participation of witnesses in proceedings.

Emblematic of this culture shift has been the introduction of a new role known as the ‘intermediary’. The intermediary, a communication specialist, is one of a range of ‘special measures’ which were introduced in 1999 through the Youth Justice and Criminal Evidence Act (YJCEA) to improve the quality of evidence available to a court and reduce the stress associated with the justice process. The function of the intermediary is to communicate ‘questions put to the witness ’and ‘to any person asking such questions, the answers given by the witness in reply to them’. As well as assisting witnesses to give evidence in court, intermediaries also advise lawyers and judges on how best to communicate with the witness more broadly.

Background

In England and Wales, the first cohort of intermediaries was introduced in 2004 through what has become known as the ‘Witness Intermediary Scheme’ (WIS) which is run by the Ministry of Justice (MOJ). The WIS matches the vulnerable witness with an intermediary based on their communication needs. The majority of intermediaries operating in England and Wales are speech and language therapists; however, there has been an increase in numbers from other backgrounds, such as teaching, nursing, social work, psychology, and occupational therapy.

In Northern Ireland, a slightly different intermediary scheme operates compared to England and Wales. In 2013, the Department of Justice of Northern Ireland (DOJ) developed a model for the provision of intermediaries in the criminal justice system. This was based on the provisions of the Criminal Evidence (NI) Order 1999, which effectively mirror the provisions of the YJCEA. In Northern Ireland, intermediaries are all trained, registered, and regulated by the DOJ. As in England and Wales, the vast majority of those on the Registered Intermediary Scheme (RIS) register are speech and language therapists, with a number coming from a social work background. A crucial distinction between the intermediary schemes in England, Wales and Northern Ireland is that in the latter, both witnesses and defendants can access the services of registered intermediaries. The DOJ concluded that respect for the principle of ‘equality of arms’ demanded that all vulnerable individuals should be eligible for intermediary assistance.

Beyond Criminal Courts

The special measures regime in both England, Wales and Northern Ireland were originally intended to apply solely to criminal proceedings. However, requests began to be made for intermediary assistance in other justice fora, such as family courts and employment tribunals. Intermediaries now commonly assist vulnerable individuals in these settings in both jurisdictions. In a recent case in England and Wales, the High Court noted how the fundamental role of the intermediary in family courts and criminal courts is the same.¹ As intermediaries have become more commonplace in criminal courts and family courts, relevant guidance has been developed to regulate the scope of their role in court. For example, in 2016, Mr Justice Charles, the Vice President of the Court of Protection in England and Wales published practical guidance entitled ‘Facilitating participation of ‘P’ and vulnerable persons in Court of Protection proceedings’. Another significant development in Great Britain has been the introduction of Practice Direction 1A, which also highlights the intermediary role in assisting vulnerable individuals to participate. In Northern Ireland, Practice Direction No.2/2019 contains detailed guidance on the intermediary role in criminal proceedings. Despite intermediaries regularly attending family court hearings, no equivalent guidance for civil courts has been issued.

Challenges

The intermediary role has played a significant part in the move towards promoting ‘best evidence’ and accommodating the needs of vulnerable individuals in court. In this regard, the role has been ‘little short of revolutionary’. The Victims’ Commissioner in England and Wales recently described it as ‘the single biggest improvement in the criminal justice system over the last thirty years’. While the intermediary role is becoming further embedded into justice processes, the role has encountered several challenges. Here are a few of the most important ones:

Duration of Appointment

Ultimately, the duration of an intermediary’s appointment is at the discretion of the court. The court may allow for an intermediary to assist the vulnerable individual for the period of oral evidence or for the entire court proceedings (or possibly for something in between). Understandably, the role of a defendant in a criminal trial is different from a witness so the length of time communication assistance will be required can vary. For example, a defendant will have legal conferences with their lawyers throughout a trial whereas a witness will not. The relevant Practice Direction in Northern Ireland states that the intermediary role is restricted to the period of oral testimony while in England and Wales, a court may exercise its powers to appoint an intermediary for longer. Again, this is at the discretion of the judge. Certain commercial providers of intermediaries, such as Communicourt, strongly argue that communication as a concept is broad and that providing intermediary assistance only for the period of evidence is superficial. The counterargument to this point is that with limited resources, intermediaries should be appointed where they are most needed.

Neutrality

As a relatively new actor to the justice system, the scope of the intermediary role has been contested. One key aspect of the role is that intermediaries operate as officers of the court and, as such, are impartial. How intermediaries operate to facilitate communication and remain impartial is a question that warrants attention. For example, if an intermediary assisting an extremely emotional witness feels that reassuring them might help them and reduce anxiety, is this breaching their impartiality? One anecdotal example from Northern Ireland involved an intermediary putting their arm around a young witness in court to comfort them. It was ultimately held by the judge that this ‘crossed the line’ and the intermediary’s involvement in the case ceased. Regardless of the venue, consideration should be given to how intermediaries can be enabled to carry out their primary role of facilitating communication and be viewed as impartial.

Skills and Qualifications

As discussed above, the majority of intermediaries in both England, Wales and Northern Ireland come from a background in speech and language therapy or social work. The MOJ in England and Wales has tried in recent years to diversify the registered intermediary cohort. In terms of the ‘matching’ of intermediaries to vulnerable individuals based on the nature of the communication issue, it is preferable that there is a wide pool of background and skillsets. For example, some intermediaries work exclusively with young children while others work with the elderly or with people diagnosed with autism spectrum disorder² or an intellectual disability. Ultimately, a court or tribunal appointing an intermediary should have the confidence that the intermediary has the requisite skillset to facilitate communication and provide clear, practical advice to the legal professionals. Although increasingly rare in practice, some courts have permitted lawyers to effectively cross-examine the intermediary about their experience and suitability for the role. It is suggested such a practice could underline the legitimacy of the role as well as the matching process undertaken by the DOJ or MOJ which have recruited, trained and ‘matched’ the intermediary to the vulnerable individual.

Intermediaries in Australia: Scope and Application

Following on from England, Wales and Northern Ireland, New South Wales was the first Australian jurisdiction to pass legislation for intermediaries in 2015.³ Currently, intermediaries are used within the criminal justice system in Tasmania, Queensland, South Australia⁴, New South Wales, Victoria⁵ and the Australian Capital Territory.⁶ Intermediaries are primarily used to assist vulnerable witnesses including children to give evidence for sexual offences and homicide cases.⁷ In the Victorian and ACT programmes, in addition to young people, any adult with a mental illness, intellectual disability, dementia or brain injury may be eligible to have an intermediary assist them in giving evidence in a police interview or court for particular criminal matter hearings.⁸ The reality is that vulnerable individuals experience barriers in access to justice not only in the criminal justice system, but, also in other areas that are connected to the broader legal system, including the civil justice system and court ordered Appropriate Dispute Resolution (ADR). In Australia, ADR processes are highly integrated in the legal system, thus many courts refer parties to participate in an ADR process. In many jurisdictions attempting to participate in the ADR process may be a prerequisite to the matter proceeding to a hearing before the court.⁹

Potential Applications of the Intermediary in the Australian Civil Legal System

It can be argued that particular individuals who are identified as more likely to encounter greater barriers in access to justice than the general population, such as Autistic persons, or otherwise neurodivergent individuals, those living with a mental health condition or other neurological/intellectual disabilities, stand to benefit from an intermediary programme that is available in court ordered or legislation-based ADR processes. Although it is recognised that ADR processes can be varied, this post focuses on the needs of Autistic persons who are subject to court ordered mediation. While there is no research focused specifically on access to justice for Autistic people, there is significant research in relation to access to justice for people with disabilities.¹⁰ The Australian Law Reform Commission’s report¹¹ details issues that may commonly arise when people with disabilities seek access to justice which include ‘communication barriers’ and ‘issues associated with giving instructions to legal representatives and capacity to participate in litigation’. The Report also discusses the issue of capacity to make decisions in their own best interest and in particular, the need for support in Decision-Making.¹² Legal reform is likely to have limited practical impact if people do not have access to the support necessary to enable them to participate in legal processes.¹³ It is at this juncture that intermediaries have the opportunity to play an important role in supporting such individuals who participate in court ordered mediations, hence fostering greater access to justice.

Autistic people communicate differently to non-Autistic people. Further, Autistic people may misinterpret communication by others and may be misinterpreted in their own communication.¹⁴ This may give rise to challenges in access to justice in ADR contexts, particularly in mediation which is based on communication between the parties facilitated by a mediator. To fulfil the aims of the International Principles and Guidelines on Access to Justice for Persons with Disabilities,¹⁵ Autistic parties engaging in court-ordered ADR processes should have access to an intermediary for support if necessary. A pilot programme may be trialled where intermediaries are made available for court ordered¹⁶ family dispute resolution (FDR) mediations, based on clear eligibility criteria. Given the role of the intermediary is to facilitate communication and communication challenges being one of the most commonly challenging aspects of mediation for Autistic persons, this presents a valuable opportunity for Australia to lead other courts and extend the role of the intermediary into a new realm. Drawing on the experiences of England, Wales and Northern Ireland, Australia stands to benefit in taking part in such a significant step towards improving access to justice in ADR for vulnerable individuals, who often experience disadvantage as parties in ADR processes.¹⁷

Author Biography

Dr Özlem Sűsler is a graduate of the University of Melbourne and La Trobe University. She holds degrees in Arts, Education and Law and has been admitted as a Barrister and Solicitor of the Supreme Court of Victoria.

Özlem is a senior lecturer at La Trobe University, School of Law, where she coordinates and teaches ADR and Contract Law in the JD and LLB programmes. She is the immediate past director of the JD Programme. Dr Susler has researched and published internationally on ADR in the fields of international commercial arbitration and the scholarship of learning and teaching. More recently she has conducted qualitative research into the experience of Autistic persons engaging in ADR processes (publication forthcoming). Dr Susler has also played a key role in coaching La Trobe Law students in various ADR Mooting competitions. She is a graduate of the Chartered Institute of Arbitrators, the Australian Institute of Company Directors and an AMDRAS accredited mediator.

Dr John Taggart is a Lecturer in Law at Queens’ University, Belfast and the Director of the Institute of Criminology and Criminal Justice (ICCJ). He holds a PhD in Law from the London School of Economics (LSE) and is a member of the Inn of Court of Northern Ireland and a member of Lincoln’s Inn. John’s research focuses on the criminal process, criminal justice and socio-legal approaches to criminal law. John’s research looks at special measures in criminal courts and the role of the intermediary as a communication specialist for vulnerable court users. He has recently worked as an academic consultant to the Australian Capital Territory (ACT) Human Rights Commission and as a legal trainer to the Northern Ireland Department of Justice. John has published widely in publications including the Criminal Law Review, International Journal of Evidence and Proof, International Journal of Law in Context and the Journal of Law and Society.

West Northamptonshire Council (acting via Northamptonshire Children’s Trust) v KA (Mother & Anor) (Intermediaries) [2024] EWHC 79 [43].
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Autism Spectrum Disorder is referred to as ‘autism’ hereafter. The term ‘autism’ throughout this paper intends to refer to individuals with a diagnosis of autism and no co-occurring intellectual disability. This article uses identity-first language (e.g., ‘Autistic person’) because many autistic people prefer it (Bury et al., 2020; Kenny et al., 2016), and it is considered less discriminatory (Bottema-Beutel et al., 2021).
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See Criminal Procedure Amendment (Child Sexual Offence) Evidence Pilot Act 2015 (NSW).
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South Australia provides a communication assistance scheme. See Evidence Act 1929 (SA) and Summary Offences Regulations 2016 (SA).
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New South Wales introduced an intermediary programme in 2016 and Victoria in 2018.
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Evidence (Miscellaneous Provisions) Amendment Act 2019 (ACT).
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See eg <https://www.justice.vic.gov.au/justice-system/courts-and-tribunals/intermediary-program/about-the-intermediary-program#program-history>.
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See eg <https://www.justice.vic.gov.au/justice-system/courts-and-tribunals/intermediary-program/about-the-intermediary-program#program-history>. In Victoria the criminal matters are restricted to witnesses in homicide matters and victims of sexual abuse.
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For example. the Federal and Family Circuit Court of Australia generally makes it mandatory (unless exceptions apply) for the parties to be referred to Family Dispute Resolution under s.13C(1)(b) of the Family Law Act 1975 (Cth) to attempt to resolve their disputes.
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See, eg, ‘The Justice Project’ Final Report, Part 1 ‘People with Disability’ (August 2018) Law Council of Australia <https://lawcouncil.au/justice-project/final-report>.
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Australian Law Reform Commission, Equality, Capacity and Disability in Commonwealth Laws – Final Report, August 2014 available at <https://www.alrc.gov.au/publication/equality-capacity-and-disability-in-commonwealth-laws-alrc-report-124/>.
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Australian Law Reform Commission, Equality, Capacity and Disability in Commonwealth Laws (Final Report, August 2014) p 4. (Access to justice issues | ALRC).
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Ibid p 7.
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See eg, Maya Albin, Isabella Chawrun, and Ami Tint, “Rethinking Social Communication Support: Exploring Communication Partner Training for Autistic Adults and Their Neurotypical Communication Partners” (2024) Autism in Adulthood <https://doi.org/10.1089/aut.2023.0>
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‘International Principles and Guidelines on Access to Justice for Persons with Disabilities’ (2020) United Nations Special Rapporteur on the Rights of Persons with Disabilities. Hereinafter referred to as ‘Guidelines’.
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This programme would be implemented through the Australian Family and Federal Circuit Courts.
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Forthcoming qualitative research article on the disadvantage experienced by Autistic adults who participated as a party to mediation is available upon request from Dr Ozlem Susler.
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The central role of party self-determination in mediation ethics

Posted on 19/12/2017 by Jonathan Crowe

Written by Professors Rachael Field and Jonathan Crowe. The post is a version of a paper delivered at the 6th ADR Research Network Roundtable, 4 -5 December 2017.

RF and JC Image

The dominant paradigm of mediation ethics has traditionally given a central role to the notion of mediator neutrality. However, this focus has been criticised in recent decades for being unrealistic and overlooking the power dynamics between the parties. In our forthcoming book, Mediation Ethics: From Theory to Practice, we advocate a new paradigm of mediation ethics focused on the notion of party self-determination. Why, then, is party self-determination a suitable candidate for this role?

The justification for making party self-determination the primary ethical imperative of mediation centres on two main arguments. The first argument is that the possibility of achieving self-determination for the parties is what distinguishes mediation from other dispute resolution processes and makes it a distinct and valuable process in its own right. The second argument is that the achievement of party self-determination provides a principled foundation for the legitimacy of the mediation process. We discuss these arguments briefly below.

Mediation as a distinct process

Party self-determination is the key factor distinguishing mediation from litigation and other dispute resolution processes, because mediation provides the parties with the ultimate power to decide how to resolve their dispute. A mediator’s role is to use their expertise so as to enable and empower the parties to reach their own decision. This characteristic of mediation is special and distinct.

This point is emphasised by the fact that in litigation, arbitration, and even conciliation processes, the focus is not on enabling and empowering the parties to take control of their dispute and to reach an outcome of their own determination. Rather, the focus is on the third party decision-maker or specialist judging the merits of the parties’ cases and imposing a decision. Such adjudicative activity is generally guided by objective norms or criteria—most often centred on the law. There is limited opportunity for party self-determination in such processes.

Party self-determination in mediation is also distinctive because it is relational—grounded in connection, cooperation and collaboration. This concept of self-determination is very different from an atomistic notion of autonomy that emphasises privacy and self. An atomistic conception of self-determination arguably underpins the adversarial legal system, because each party is encouraged to advocate single-mindedly for their own interests. In mediation, by contrast, party self-determination does not exist on an individual level; rather, it is holistic and relational, encompassing the needs and interests of both parties. If only one party experiences self-determination, the process has not succeeded in its aims.

Principled and legitimate outcomes

A second argument for emphasising party self-determination is that it provides a principled foundation for the legitimacy of the process. Party self-determination can be said to lead to principled outcomes because it reflects foundational values of our legal, social and political order. These include traditional liberal values, such as consent, autonomy, respect, privacy and dignity. However, they also include relational values, such as empathy, emotional expression and interpersonal dialogue.

These values highlight the importance of party involvement and collaboration in the negotiation, creative option generation and decision-making components of mediation. In mediation, the parties can achieve a principled outcome because they are deeply and thoroughly involved in working through the issues, discussing their individual and mutual perspectives, and developing the terms of the final resolution. Party engagement also promotes the personal dignity of the parties, particularly when the result is to avoid the inevitable costs and uncertainties of litigation.

Party self-determination also promotes principled outcomes because it yields a form of real world justice. Many disputes take place in a context where the parties have different needs, priorities and values. Parties value different things, and also value things differently. This means that compromises and trade-offs are an inevitable and constructive part of the process. Compromise, then, does not mean the process is unprincipled or illegitimate. Rather, the value of compromise represents a key principle in its own right. It can lead to a more principled and legitimate result than rule-based or adversarial approaches. The notion of party self-determination recognises and embodies this important value.

Nearly Neutral: A Mediator’s Best Bet

Posted on 08/02/2017 by Associate Professor Becky Batagol

By Amanda Selvarajah

This post is the third in a series of posts on this blog written by students studying Non-Adversarial Justice at the Faculty of Law at Monash University. Students were invited to write blog posts explaining various complex areas of law relating to dispute resolution to ordinary readers. The very best post on each topic is published here.

‘The Gate’ by Guillaume Delebarre: Creative commons source

The National Mediator Accreditation System removed “neutrality” as a requirement on their list of ethical standards in 2015. This may suggest a trend away from the truly “neutral” mediator in the sense of a ‘detached third-party’. But does this mean we are to rule out neutrality entirely as an ethical consideration in mediation? With a trend of increasingly interventionist mediators, a complete disregard of the concept could place participants at great risk of being subjected to ethically dubious decisions.

Perhaps the reason for the mediation community’s shift from neutrality is not because of a flaw in neutrality itself, but rather a failure to grasp a version of neutrality that can and should be an important element of an ethical mediation. Instead of defining neutrality as an unattainable attribute intrinsic in the nature of a mediator, perhaps we should be viewing neutrality as a constant practical endeavour throughout the mediation process, a mediator who’s nearly neutral.

Why Neutral At All?

A mediator in its simplest description is a ‘trained, impartial third party’ who assists parties in making their own decisions. However, mediation remains unregulated and virtually unmonitored as it is typically conducted in private with assurances of confidentiality. Mediated parties are expected to relinquish a guarantee of the principles of justice and fairness that would be inescapable in a common law court. It is these qualities of mediation that leave participants particularly vulnerable to a biased decision in the event of a potentially opinionated, interventionist mediator. Therefore, it is the consensual participation in the process and the assurance of “neutrality” that many consider the source of the process’s legitimacy.

On the spectrum of mediator involvement in mediation, the facilitative approach, which focuses a mediator’s role to procedural stages, leaves parties with as much freedom and control in the substance and outcome of the mediation as possible. The evaluative approach, on the other hand, has even been disregarded by some, like the Victorian Association for Dispute Resolution, as being a form of mediation at all. They argued that the mediator’s ‘input into the content, and sometimes the outcome’ of the mediation made the process inherently contrary to the core principles of mediation.

Such or any mediator involvement may suggest, as critics of the evaluative mediation approach do, an immediate breach of neutrality. But this is only the case if neutrality is restricted to a ‘strict, dualistic sense of the mediator either being or not being neutral.’

Why Not Be Absolutely Neutral?

To truly make the case for a re-imagined concept of neutrality, one must first accept the bold suggestion that mediations are not neutral in its literal sense and could likely never be so. Mental health professionals have found that ‘there is no such thing as total impartiality, neutrality, or lack of bias when working with people, even though as practitioners they may strive for such ideals.’ In mediation specifically, research has shown that in practice, mediators may affect and influence mediation at almost all stages of the process. Examples include ‘the ways they structure the interchange between the parties, in terms of the sequencing of storytelling and the framing of responses and what needs to be responded to.’ It follows then that any assessment of a mediator’s success in reference to their ability to be neutral, in the literal sense of the word, would set almost all our mediators up for failure.

However, regardless of a mediator’s ability to be neutral, there is the added consideration that absolute neutrality may not even be conducive to the goals of a truly successful mediation. For example, in the case of the simultaneous expectations that a mediator be both absolutely neutral but also committed to facilitating an equal conversation, one often comes at the cost of the other.

Mediated parties often experience a power imbalance. Therefore, a hands-off mediator may in these cases fail to protect ‘vulnerable parties from inappropriate pressure’. In family law mediation (family dispute resolution or FDR), for example, parties often meet at very unequal terms. Mediators in these cases may be caught between either claiming a position of absolute neutrality, thereby stripping them of the power to ‘redress imbalances’, or recognising a role in sometimes having to take ‘affirmative action… to achieve a balanced agreement.’

Family dispute resolution practitioners must consider if ‘family dispute resolution is appropriate’ before mediation is undergone. This may allow for vulnerable parties to be excluded from the mediation process, sparing mediators the struggle of balancing these competing expectations. But some victims still ‘feel that FDR processes fail to identify and manage the risk of family violence effectively.’ The exclusion also does nothing for parties beyond family abuse dynamics who may still be more vulnerable than the other party due to cultural, societal or financial factors.

This concept of absolute neutrality is similarly challenging for indigenous mediators, to whom Western notions of neutrality may not make sense. In indigenous mediation it has been recommended that a respected elder would likely be the more appropriate choice of mediator than a neutral third-party. Selecting a mediator for their ability to intimately understand the parties as opposed to their ability to detach themselves from them is arguably in direct opposition to Western expectations of a successful mediator. A commonality in our understandings of a successful mediation, however, may be the increasing interest in addressing the conflict at the heart of mediations.

Therapeutic jurisprudence, a philosophy focused on critically viewing our legal systems to maximise the health and wellbeing of those who engage with it, has been applied to improve and direct law reform throughout Australia’s legal system. Critically assessing the purely facilitative mediation process through a therapeutic jurisprudence lens unearths the potentially anti-therapeutic effects of having a non-interventional, solution-centric mediator who as a result, fails to address and redress the underlying tensions at the heart of parties’ relationships. The development of therapeutic jurisprudence throughout Australia is proof that the indigenous community’s focus on rebuilding and strengthening relationships is not unique and could be facilitated in mediations with a more involved mediator.

A New, Nearly Neutral Approach

Neutrality was seen as a cornerstone of mediation’s procedural fairness, the idea that ‘what is required by procedural fairness is a fair hearing, not a fair outcome’. The facilitative approach has, therefore, been described as having the highest regard for procedural fairness on the basis of perhaps a rather simplistic equating of a fair hearing with a decision-maker who allows parties to make their own case with as little intervention as possible.

This argument assumes, however, that participants of mediation are always equally capable of articulating and pursuing their own interests and that they are always more concerned with a practical outcome than a resolution of the underlying feelings and conflict which brought on the mediation in the first place.

However, research has shown that in mediation ‘the basis of authoritativeness (e.g. of the ability to gain voluntary acceptance from members of the public) is changing from neutrality-based to trust-based.’ This suggests that contrary to advocates for neutral mediators, parties may actually prefer a more interventionist mediator who is willing to foster openness and build a relationship of trust over a detached one.

So perhaps instead of aligning neutrality with a mediator who never intervenes, it would be best to hold mediators’ interventions to standards ‘of non-partisan fairness or impartiality’ instead. For example, weighing, as an objective third-party, whether an intervention would make sense to ‘facilitate a productive dialogue by encouraging or even coaching reticent or inarticulate parties’ to promote a generally more just proceeding. After all, in the immortal words of Theodore Roosevelt, ‘Impartial justice consists not in being neutral between right and wrong, but in finding out the right and upholding it, wherever found, against the wrong.’

Amanda Selvarajah is (@amanda_darshini) currently in her third year of the Bachelor of Law (Honours) program at Monash University. Her research has focused on questioning the limits of the law and its rooms for improvement across a variety of fields. Last year, her research into the abuse of forensic evidence in court was selected for presentation at the International Conference of Undergraduate Research.