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“If mediation is not to be a vehicle for injustice, mediators must address power relationships between disputants. However they cannot do so effectively unless they forfeit their neutrality. This conundrum can be resolved by abandoning claims to mediator neutrality, which are anyway inevitably flawed.” Analyse and discuss

INTRODUCTION

The concept of mediator neutrality, along with the party consensuality, forms the bedrock of mediation’s claim to social legitimacy as a credible means of resolving disputes.[1] It is in this sense an inheritance of Enlightenment rationalism’s belief in the possibility of an Archimedean point; the abstracted ‘view from nowhere’ that is central to broader conceptions of reason.[2] However, whilst the meaning of neutrality is necessarily constructed from its enmeshment within contexts of partiality,[3] in the context of mediated disputes its role is far from clear. Whilst there is a broad extant consensus that neutrality constitutes the norm for mediator input and therefore the measure by which power relationships between disputant parties are monitored,[4] the lack of perspicuity with which neutrality is understood problematises its ability to regulate and rectify power imbalances that threaten the fairness of mediation outcomes. The “folklore”[5] of mediator neutrality, as Cobb, Rifkin and Millen refer to these underdeveloped accounts, in fact operates to mystify the role of neutrality and obfuscate the operation of power relations in mediation.[6] In assessing neutrality discourse, this essay attempts to penetrate this folklore to reach an understanding of neutrality as the regulation of dialogical narratives; an account which views neutrality as receptive to both justice and the effects of power.

THE CONTESTED DISCOURSE OVER MEDIATOR NEUTRALITY

(a) The centrality of power to neutrality

The folklore of neutrality discourse is largely constituted by two distinct accounts of what it means for mediators to be neutral. These central accounts – neutrality as impartiality and neutrality as equidistance – both attempt to proffer an account of neutrality in relation to its ability to undercut unequal power relationships between parties that threaten the fairness of mediation outcomes. Thus in order to penetrate each of these branches of mediation discourse it is crucial to understand neutrality in the context of the potential pernicious power differentials that it purports to render benign.

I intimated above that the legitimacy of mediation is grounded not only in mediator neutrality but also in the consensuality by which parties commit to mediation.[7] Consensuality, as a foundational condition for mediation’s legitimacy, requires the realisation of the promise that each party be empowered to pursue their interests in the dispute. In as much, a discussion of consensuality and neutrality must countenance the role of power differentials in influencing mediation outcomes. It is therefore appropriate to note the role of power in mediation before canvassing the two central accounts of neutrality.

Power in mediation can be explained as the capacity of one party to bring to bear an influence on the outcome of the mediation; it is the extent to which a party is able to achieve their goals or satisfy their needs.[8] To think of power as a quality or property which is possessed by a party would be, however, to oversimplify the way it manifests in the relationships between parties. It is rather an intangible aspect of the interpersonal dynamic itself: “Power is not a characteristic of a person, exercised in a vacuum, but is instead an attribute of a relationship.”[9] Where that power relationship is weighted in the favour of one party to the disadvantage of the other the very terms of partiality in the mediation are skewed. Without any regulatory norm – such as neutrality – which is capable of redressing this disparity in influence the power imbalance is merely perpetuated in the terms of the outcome.[10] Thus the pervasive ability of power imbalances to colour the terms of agreement gives weight to criticisms of the fairness of the mediation process and its ability to protect the interests of weaker parties.[11] Moreover, on this basis mediation risks entrenching systemic disadvantages, for instance where it “ignores the power differences between men and women that put women at a disadvantage in negotiating with men.”[12]

Examination of the role of power imbalances in influencing the outcomes of mediation therefore brings into relief a clear picture of the challenge facing any account of neutrality. It seems that a workable conception of neutrality must provide some external standard of fairness if it is to not be beholden by the power inequalities inherent in party relationships. Yet simultaneously, it must not divulge into mere partisanship. This evident “paradox”[13] goes to the contested heart of neutrality discourse; the contest between the private ordering of party preferences and an overriding ethical code on the other.[14] It is to an examination of how the two most central accounts of neutrality negotiate this paradox that we now turn.

(b) Impartiality and equidistance

Traditionally, neutrality is equated with impartiality in the sense of an ability of mediators to interact with disputant parties without the intrusion of opinions or agendas.[15] On this account of neutrality the mediator’s obligation is to maintain unbiased relationships with the disputants, comporting themselves in a manner which favours neither party. Neutrality construed as impartiality, however, places unrealistic and perhaps unachievable expectations on the mediator. In order to act impartially, a mediator must have a consummate perspicuous insight into their own preferences and opinions.[16] This is all the more pertinent where mediator prejudices are subconscious.[17] Given the difficulty of achieving this in practice, it is clear that impartiality does fully explain mediator neutrality. Most crucially, it fails to respond to the aforementioned concern that “[t]reating unqual parties equally results in inequality.”[18] Neutrality as impartiality therefore fails to adequately come to terms with the influence of power imbalances and th mediator’s own preferences in determining mediation outcomes.

The second predominant explanation of neutrality conceives it as equidistance. On this account, mediators may intervene in proceedings substantively in order to redress the impact of power discrepancies, aiding the weaker party to articulate their “side.”[19] The mediator aligns themselves with disputants in a partisan manner so as to rectify power imbalances.[20] Neutrality, construed on these grounds, approximates symmetry through the use of partiality.[21]

However, note that equidistance relies on the mediator assuming a position of partiality in relation to the disputants. In their empirical study of how mediators attempt to approximate neutrality in practice, Cobb and Rifkin diagnose the problem of achieving neutrality as one which attempts to accommodate three competing thematic concerns; justice, power and ideology.[22] On this account, neutrality is understood as the attempt to negotiate between some external standard of fairness, the relative equality or inequality of the power relationship between the disputant parties, and the position adopting by mediators in orienting themselves towards the matter at hand. Applying this schema to equidistance, it is clear that equidistance conflates justice with ideology. In doing so, it attempts to use the mediator’s own standpoint – one necessarily informed by their values and experiences – as the measure of fairness.[23] As such equidistance effectively licences mediators to pursue their own ideological diagnosis of the matter under the guise of neutrality. Equidistance is therefore unsatisfactory in that it “merely cloaks the situatedness of the mediator and… conceals the operation of power.”[24]

Connected to equidistance is the notion of selective facilitation, whereby mediators attempt to redress power imbalances through procedural rather than substantive incursions into the dialogue between parties.[25] In as much as this model provides that mediators may influence outcomes by creating greater opportunities for the pursuit of their preferred outcome[26] it avoids the mediator advocating any substantive position in the dispute. Whilst to this extent selective facilitation offers a preferable account to equidistance by taking a procedural focus, the mediator’s ideology remains the measure for determining what interventions are to be made. In as much, it is inadequate since it continues to allow the mediator’s own preferences to intrude on the formation of the mediation outcome.

(c) The requirements of an adequate theory of neutrality

The preceding discussion indicates the substantial difficulties involved in mediating fair outcomes whilst simultaneously retaining a defensible claim to neutrality. In doing so I have traced the interrelationship between the power dynamics of mediation and the core explanations of mediator neutrality in a manner which suggests that neither gives an adequate account of how mediators might pursue just outcomes whilst retaining neutrality. Before proceeding, it is appropriate to extrapolate two observations that emerge from the discussion of accounts of neutrality as impartiality and equidistance. Whilst these observations operate to qualify the nature of the shortcomings of the canvassed interpretations of neutrality, they also serve to identify the requirements for a more adequate account of neutrality. In as much, they prepare the ground for the examination of a narrative-based explanation of mediator neutrality that will be conducted in the subsequent section,

The first pertinent observation emerging from accounts of neutrality as impartiality and equidistance is largely uncontentious; that neither of the canvassed understandings of neutrality thus canvassed are in themselves adequate to perform the dual task of redressing power imbalances and preserving the neutral status of the mediator. Whilst a conception of neutrality as impartiality preserves the plausibility of the mediator’s role as neutral, and therefore grounds the mediation’s pretense of legitimacy, it is ill-equipped to allay concerns that preexistent power imbalances will be carried through to mediated outcomes. On the other hand construing neutrality as equidistance relies overwhelmingly on a correlation between the mediator’s ideological inclinations and a broader notion of fairness. More importantly, equidistance seems to abandon the validity of any claim to neutrality by casting the mediator in a partisan role. In as much, neutrality is encountered as a notion that is largely “opaque.”[27]

Despite the fact that this observation may seem to be a mere platitude, it nonetheless grounds an important suggestion regarding the kind of relationship we might expect these central accounts to have to a more adequate theory. That is to say, whilst in isolation both impartiality and equidistance fail to fully perform the explanatory role we demand of neutrality, each reflects concerns that that a more adequate account must accommodate. As such, rather than viewing impartiality and equidistance as diametrically opposed theories in strict competition with each other, it might be more appropriate, as Cobb, Rifkin and Millen suggest, to see them as embodying different aspects of a single notion of neutrality.[28] Construed along these lines, neutrality and equidistance are not exclusive, and despite the constructive tension between them, must both be built in to any adequate account of neutrality.[29] Moreover, in as much as it indicates that the search for an adequate explanation of neutrality may be viewed as an attempt to develop a conceptual framework which simultaneously acknowledges the concerns of each account without disregarding the concerns of either, it forms the basis for all ongoing discussion.

The second observation builds on the first by suggesting a way in which the bridge between competing accounts of neutrality might be constructed. This observation is that accounts of impartiality and equidistance conceive of neutrality in essentially binary terms. As Astor argues, such accounts construe neutrality in absolute terms, supposing that it is either present or absent.[30] This binary attitude imposes an unrealistic expectation that mediators be perfectly neutral. This picture leaves no room for bringing together the concerns of impartiality and equidistance in the manner suggested as fruitful in my first observation. Recalling the tripartite concerns of justice, power and ideology,[31] the problematic effect of the binary conception of neutrality can be demonstrated. In its emphasis on ideological neutrality, a binary application of impartiality precludes the neutralisation of power. Conversely, equidistance fails to achieve ideological neutrality because it overwhelmingly prioritises the importance of reducing power imbalances to a state of neutrality.

As such, so long as neutrality is thematised in binary terms there will always be validity to claims that mediators cannot be neutral.[32] If follows that in attempting to accommodate the role of both ideology and power in contributing to the fairness of mediation outcomes, a binary conception of neutrality should be abandoned. In its place we should adopt an attitude that looks for certain degrees of neutrality in relation to both power and ideology rather than the satisfaction of strict conditions. In as much, this understanding of neutrality should be constructed in “contextual and fluid”[33] terms which decry the possibility of simple categorisation. As with the first observation, this realisation prepares the ground for the discussion of the role of narrative processes in mediation in the following section.

Thus the shortcomings of explaining neutrality in terms of impartiality and equidistance indicate two key expectations that we might apply to alternate explanations of mediator neutrality. Firstly, they indicate that the interests of neutrality with respect to mediator ideology and neutrality with respect to the power relationship between parties should be brought together into a composite understanding of the mediator function. Secondly, our understanding of neutrality must be constructed in non-absolute terms which are responsive to the complexities of the social context within which mediation is embedded. With these expectations in mind, the following section considers the plausibility of a procedurally oriented explanation of neutrality in terms of the regulating the narratives that constitute the mediation dialogue.

NEUTRALITY AND DIALOGICAL NARRATIVES

The previous section demonstrated the difficulty of simultaneously accommodating the role of mediator neutrality in imbuing mediation processes with legitimacy and redressing power imbalances that threaten to compromise the fairness of mediation outcomes. Further, highlighting that this task might be more effectively achieved by addressing both mediation ideology and power relations between parties in a way which rejects a binary conception of neutrality provides a standard of assessment for alternative accounts of neutrality. Against this backdrop, I now assess the adequacy of Cobb and Rifkin’s attempt to provide an alternate vocabulary which avers discussion of party and mediator interests.[34]

The concepts of impartiality and equidistance both attempt to approximate neutrality by appeal to interests.[35] On both accounts, Cobb and Rifkin argue, interests provide the motivation for the mediator regulating their own conduct.[36] In impartiality this is present as the suppression of the mediator’s own interests, or ideology, whilst in equidistance it manifests as the adoption of the interests of disempowered parties. In order to transcend the tension between the two accounts it might therefore be advantageous to jettison discussion of interests in favour of focusing on an analysis of the dialogical exchange between disputant parties.[37] In doing so neutrality discourse might be able to integrate the concerns of both power and ideology by reconstructing the discussion in new conceptual terms: “The relocation of ideological processes from persons and relationships to discourse requires that the field of mediation utilise a vocabulary outside the existing rhetoric about neutrality.”[38]

In as much, Cobb and Rifkin suggest a shift from a foundational account of neutrality to a poststructuralist one in which the language of mediation is understood as constituting the reality of the mediation process rather than representing that reality.[39]

On this account ideology, interests and power are understood in terms suggested by Stuart Hall, as discursive processes[40] by which descriptions of the world are deployed by parties and mediators to assert primacy and control over the exchange of stories.[41] Treating the operation of power and ideology on the same plane, as narratives containing their own normative assessments of the events they depict, provides a commensurable means for integrating the concerns recognised by both impartiality and equidistance. In this sense, a narrative-based explication of mediation purports to fulfill the first of our expectations.

A dialogical narrative necessarily positions each disputant party in a description which not only defines the problem at hand, but also contains an internal logic which dictates certain normative conclusions.[42] In as much, “the story world constitutes the material world by generating descriptions that have consequences in the material world.”[43] The consequence of this insight is that the struggle for power between disputant parties and the actions of the mediator are recast as political processes[44] through which the content of the “dominant”[45] narrative is contested. Reconceptualising mediation in this manner, as a process of competing narratives, rejects the objectivism on which neutrality is otherwise constructed in binary terms, replacing it with a political conception which is responsive to the social processes at play.[46] In as much, adopting an understanding of the interrelationship between justice, power and ideology along these lines provides a way of viewing neutrality in incremental rather than absolute terms. The second expectation of an adequate account of neutrality – that it be non-binary – is therefore also ostensibly satisfied. On this picture mediator interventions aim to prevent one party from monopolising the terms of the dominant narrative.[47] Since the mediator simply creates the opportunity for parties to proffer their own narratives, however, they fall short of imposing their own ideology upon the content of the dispute.

Understanding mediation as a dialogical process therefore provides a conceptual vocabulary that focuses on communication patterns rather than an interest based psychological vocabulary.[48] The locus of power is thus within the very dialogue of exchange rather than the relationships between the parties. In this manner a narrative account conceives of neutrality as the procedural actions by which a mediator controls the formation of the dominant story; the management of discourse rather than substantive intervention into it.[49] Whilst this approach ostensibly provides a framework for understanding neutrality superior to those previously discussed, in the final section of this paper I consider the benefits of subsuming it within a broader, non-theoretical, understanding of neutrality.

A PRACTICAL FRAMEWORK FOR APPLYING NEUTRALITY

The first section of this paper concluded with the acknowledgement that the concepts of impartiality and equidistance were not so much intrinsically flawed so much as incomplete accounts of neutrality. In a similar vein, a narrative explanation of neutrality might also be, in itself, incomplete. This is the claim I pursue in this final section, arguing that neutrality as narrative process is best located within a broader practice-based account.

Astor argues in various places for the necessity of abandoning the quest for a “grand theory”[50] of neutrality in favour of a more situated notion.[51] Whilst Astor argues for a situated understanding of the mediator’s role which prioritises consensuality as the core normative value,[52] I want to suggest that the framework by which Astor structures her account provides a framework which can beneficially structure the application of neutrality conceived of as a narrative process.

By focusing on functional concerns, on how mediators might “do neutrality”[53] rather than how it should be conceptualised theoretically, Astor suggests a meta-level framework that structures the mediator’s function. This structure articulates set of concerns to which mediators must be receptive: Understanding their own perspective;[54] remaining open to other perspectives;[55] valuing non-dominant perspectives;[56] maximising the control of each party;[57] and actively engaging with power dynamics.[58] Whilst Astor uses this framework to structure a discussion which emphasises consensuality, I submit that the same taxonomy of mediator functions can be used to structure the implementation of neutrality as narrative processes. Indeed, the five enunciated mediator functions seem to be highly amenable to being reframed in narrative terms. Respectively, they might be reconstrued as the following practices: Understanding the role of the mediator’s own preferred narratives; remaining receptive to other narratives; giving credence to non-dominant narratives; maximising each party’s control over the dialogical narrative of the mediation, and addressing disproportionate influence on the mediation narrative.

Such a comparison does not purport to evaluate the relative merits of casting narratives rather than consensuality as the defining principle of the mediator’s role. However, it does indicate that understanding neutrality through narrative processes is not inimical to the adoption of a meta-level orientation which characterises mediator’s responsibilities as a set of functional practices. The theoretical explanation of neutrality as narrative processes can be subsumed into a broader framework which is, in an important sense, not theoretical but rather functional. In doing so, I submit that the notion of neutrality as narrative processes becomes significantly more defined. Placing an account of neutrality within the functional framework suggested by Astor provides a taxonomy of core means by which mediators engage with dialogical narratives. In as much, it offers a structure for the practical application of narrative-based understandings of neutrality by drawing attention to the various modes of their use. To this extent, this framework provides functional criteria by which mediators can supervise the political process in which narratives vie for supremacy.

CONCLUSION

Neutrality purports to impose a normative standard that ensures that mediated outcomes conform to notions of justice and fairness. In attempting to impose such a standard, however, accounts of neutrality countenance comprising the very source of mediator legitimacy. This essay has analysed the intractable dilemma that emerges within accounts of neutrality that attempt to reduce it to notions of impartiality and equidistance. The requirements of a successor account were thereby identified; treatment of ideology and power in commensurable terms and rejection of a binary construction of neutrality. Casting dialogical narratives in a central explanatory role, I have argued, is largely able to accommodate these concerns. By displacing the interest-based notion of neutrality in this way, this paper has sought to create room for an awareness of the effect of language in defining power relations and structuring an account of mediator neutrality which treats both justice and power in political terms.

BIBLIOGRAPHY

H Astor ‘Mediator Neutrality: Making Sense of Theory and Practice’ (2007) 16 (2) Social and Legal Studies 221.

H Astor ‘Rethinking Neutrality: A Theory to Inform Practice Parts 1 and 2’ (2000) 11 Australian Dispute Resolution Journal 73.

C Bruch ‘And How Are the Children? The Effects of Ideology and Mediation on Child Custody Law and Children’s Well-Being in the United States’ (1988) 2 International Journal of Law and the Family 106.

S Charlesworth and J Haynes The Fundamentals of Family Mediation. Federation Press: Sydney (1996).

S Cobb and J Rifkin ‘Neutrality as a Discursive Practice: The Construction and Transformation of Narratives in Community Mediation’ (1991) Studies in Law Politics and Society 69.

S Cobb and J Rifkin ‘Practice and Paradox: Deconstructing Neutrality in Mediation’ (1991) 16 Law and Social Inquiry 35.

S Cobb, J Rifkin and J Millen ‘Toward a New Discourse for Mediation: A Critique of Neutrality’ (1991) 9(2) Mediation Quarterly 151.

L Cooks and C Hale ‘The Construction of Ethics in Mediation’ (1994) 12(1) Mediation Quarterly 55.

A Davis Community Mediation in Massachusetts. Report to the Massachusetts District Court. Salem: Mass (1986).

D Dyck ‘Mediator as Nonviolent Advocate: Revisiting the Question of Mediator Neutrality’ (1991) 18(2) Mediation Quarterly 129.

S Exon ‘How Can a Mediator Be Both Impartial and Fair?: Why Ethical Standards of Conduct Create Chaos for Mediators’ (2006) 2 Journal of Dispute Resolution 387.

L Fisher and M Brandon Mediating with Families: Making the Difference. Sydney: Prentice Hall (2002).

D Gorrie ‘Mediator Neutrality: High Ideal or Sacred Cow?’ in L Fisher (ed) Conference Proceedings, Famcon ’95 (Third National Family Mediation Conference, Sydney, 1995).

D Greatbatch and R Dingwall ‘Selective Facilitation: Some Preliminary Observations on a Strategy Used by Divorce Mediators’ (1989) Law and Society Review 613.

T Grillo ‘The Mediation Alternative: Process Dangers for Women’ (1991) 100 Yale Law Journal 1545.

S Hall ‘Signification, Representation, Ideology: Althusser and the Post-Structuralist Debates’ (1985) 2 Critical Studies in Mass Communication 91.

J Kelly ‘Power Imbalance in Divorce and Interpersonal Mediation: Assessment and Intervention’ (1995) 13 Mediation Quarterly 85.

D Kolb ‘To Be a Mediator: Expressive Tactics in Mediation’ (1985) 41 Journal of Social Issues 11.

G Kurien ‘Critique of the Myths of Mediation’ (1995) 6 Australian Dispute Resolution Journal 43.

M Lichtenstein ‘Mediation and Feminism: Common Values and Challenges’ (2000) 18(1) Mediation Quarterly 30.

W Lucy ‘The Possibility of Impartiality’ (2005) 25 Oxford Journal of Legal Studies 3.

S Lukes Power: A Radical View. London: Macmillan Press (1977).

M Matsuda ‘Affirmative Action and Legal Knowledge: Planting Seeds in Plowed-up Ground’ (1988) 11 Harvard Women’s Law Journal 1.

B Mayer ‘The Dynamics of Power in Mediation and Negotiation’ (1987) 16 Mediation Quarterly 75.

E Mishler ‘The Analysis of Interview Narratives’ in T Sarbin (ed) Narrative Psychology, The Storied Nature of Human Conduct. New York: Praeger (1986).

L Mulcahy ‘The Possibility and Desirability of Mediator Neutrality – Towards an Ethic of Partiality’ (2001) 10 Social and Legal Studies 505.

E Odom ‘The Mediation Hearing: A Primer’ in J Palenski and H Launer (eds) Mediation. Springfield, Ill: Thomas (1986) .

I Young ‘Impartiality and the Civic Public: Some Implications of Feminist Critiques of Moral and Political Theory’ in S Benhabib and D Cornell (eds) Feminism as Critique: On the Politics of Gender. Minneapolis, MN: University of Minnesota Press (1987).

 


[1] H Astor ‘ Rethinking Neutrality: A Theory to Inform Practice Parts 1 and 2’ (2000) 11 Australian Dispute Resolution Journal 73.

[2] I Young ‘Impartiality and the Civic Public: Some Implications of Feminist Critiques of Moral and Political Theory’ in S Benhabib and D Cornell (eds) Feminism as Critique: On the Politics of Gender. Minneapolis, MN: University of Minnesota Press (1987).

[3] W Lucy ‘The Possibility of Impartiality’ (2005) 25 Oxford Journal of Legal Studies 3.

[4] H Astor ‘Mediator Neutrality: Making Sense of Theory and Practice’ (2007) 16 (2) Social and Legal Studies 221.

[5] S Cobb, J Rifkin and J Millen ‘Toward a New Discourse for Mediation: A Critique of Neutrality’ (1991) 9(2) Mediation Quarterly at 151.

[6] Id at 152.

[7] H Astor ‘ Rethinking Neutrality: A Theory to Inform Practice Parts 1 and 2’ (2000) 11 Australian Dispute Resolution Journal at 73-74.

[8] J Kelly ‘Power Imbalance in Divorce and Interpersonal Mediation: Assessment and Intervention’ (1995) 13 Mediation Quarterly at 87.

[9] Ibid.

[10] H Astor ‘Mediator Neutrality: Making Sense of Theory and Practice’ (2007) 16 (2) Social and Legal Studies 221.

[11] C Bruch ‘And How Are the Children? The Effects of Ideology and Mediation on Child Custody Law and Children’s Well-Being in the United States’ (1988) 2 International Journal of Law and the Family 106; T Grillo ‘The Mediation Alternative: Process Dangers for Women’ (1991) 100 Yale Law Journal 1545.

[12] M Lichtenstein ‘Mediation and Feminism: Common Values and Challenges’ (2000) 18(1) Mediation Quarterly at 20.

[13] S Cobb, J Rifkin and J Millen ‘Toward a New Discourse for Mediation: A Critique of Neutrality’ (1991) 9(2) Mediation Quarterly 151.

[14] D Greatbatch and R Dingwall ‘Selective Facilitation: Some Preliminary Observations on a Strategy Used by Divorce Mediators’ (1989) Law and Society Review 613.

[15] A Davis Community Mediation in Massachusetts. Report to the Massachusetts District Court. Salem: Mass (1986) at 21.

[16] S Charlesworth and J Haynes The Fundamentals of Family Mediation. Federation Press: Sydney (1996) at 46-47, cited in H Astor ‘Rethinking Neutrality: A Theory to Inform Practice Parts 1 and 2’ (2000) 11 Australian Dispute Resolution Journal at 77.

[17] G Kurien ‘Critique of the Myths of Mediation’ (1995) 6 Australian Dispute Resolution Journal 43, esp at 51-52; S Cobb and J Rifkin ‘Practice and Paradox: Deconstructing Neutrality in Mediation’ (1991) 16 Law and Social Inquiry at 43, both cited in H Astor ‘Rethinking Neutrality: A Theory to Inform Practice Parts 1 and 2’ (2000) 11 Australian Dispute Resolution Journal at 77.

[18] H Astor ‘Rethinking Neutrality: A Theory to Inform Practice Parts 1 and 2’ (2000) 11 Australian Dispute Resolution Journal at 77.

[19] E Odom ‘The Mediation Hearing: A Primer’ in J Palenski and H Launer (eds) Mediation. Springfield, Ill: Thomas (1986).

[20] S Cobb, J Rifkin and J Millen ‘Toward a New Discourse for Mediation: A Critique of Neutrality’ (1991) 9(2) Mediation Quarterly at 153.

[21] D Kolb ‘To Be a Mediator: Expressive Tactics in Mediation’ (1985) 41 Journal of Social Issues 11. Similarly, Cooks and Hale describe equidistance as an “active process by which partiality is used to create symmetry” (L Cooks and C Hale ‘The Construction of Ethics in Mediation’ (1994) 12(1) Mediation Quarterly 55 at 64.)

[22] S Cobb and J Rifkin ‘Practice and Paradox: Deconstructing Neutrality in Mediation’ (1991) 16 Law and Social Inquiry at 39.

[23] H Astor ‘Mediator Neutrality: Making Sense of Theory and Practice’ (2007) 16 (2) Social and Legal Studies at 227.

[24] Ibid.

[25] D Greatbatch and R Dingwall ‘Selective Facilitation: Some Preliminary Observations on a Strategy Used by Divorce Mediators’ (1989) Law and Society Review 613.

[26] Ibid.

[27] S Cobb and J Rifkin ‘Practice and Paradox: Deconstructing Neutrality in Mediation’ (1991) 16 Law and Social Inquiry at 37.

[28] Id at 153.

[29] Ibid.

[30] H Astor ‘Rethinking Neutrality: A Theory to Inform Practice Parts 1 and 2’ (2000) 11 Australian Dispute Resolution Journal at 79-80.

[31] S Cobb and J Rifkin ‘Practice and Paradox: Deconstructing Neutrality in Mediation’ (1991) 16 Law and Social Inquiry at 39.

[32] For such an argument see D Gorrie ‘Mediator Neutrality: High Ideal or Sacred Cow?’ in L Fisher (ed) Conference Proceedings, Famcon ’95 (Third National Family Mediation Conference, Sydney, 1995) at 30.

[33] H Astor ‘Rethinking Neutrality: A Theory to Inform Practice Parts 1 and 2’ (2000) 11 Australian Dispute Resolution Journal at 79.

[34] S Cobb and J Rifkin ‘Practice and Paradox: Deconstructing Neutrality in Mediation’ (1991) 16 Law and Social Inquiry at 46.

[35] Ibid.

[36] Ibid.

[37] Id at 50.

[38] Ibid.

[39] Ibid.

[40] S Hall ‘Signification, Representation, Ideology: Althusser and the Post-Structuralist Debates’ (1985) 2 Critical Studies in Mass Communication 91.

[41] S Cobb and J Rifkin ‘Practice and Paradox: Deconstructing Neutrality in Mediation’ (1991) 16 Law and Social Inquiry at 51.

[42] Id at 51-52.

[43] Id at 52, referring to E Mishler ‘The Analysis of Interview Narratives’ in T Sarbin (ed) Narrative Psychology, The Storied Nature of Human Conduct. New York: Praeger (1986).

[44] S Cobb and J Rifkin ‘Practice and Paradox: Deconstructing Neutrality in Mediation’ (1991) 16 Law and Social Inquiry at 52.

[45] Ibid.

[46] Id at 38.

[47] Id at 54.

[48] Id at 62.

[49] Id at 38.

[50] H Astor ‘Rethinking Neutrality: A Theory to Inform Practice Parts 1 and 2’ (2000) 11 Australian Dispute Resolution Journal at 81.

[51] H Astor ‘Mediator Neutrality: Making Sense of Theory and Practice’ (2007) 16 (2) Social and Legal Studies 221; H Astor ‘Rethinking Neutrality: A Theory to Inform Practice Parts 1 and 2’ (2000) 11 Australian Dispute Resolution Journal 73.

[52] Id at 236.

[53] Id at 229.

[54] Id at 230.

[55] Id at 231-232.

[56] Id at 232-234.

[57] Id at 234-235.

[58] Id at 235-236.


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