Independence, neutrality and impartiality - the legal triangle of requirements for the mediator

25 Basics of mediation (5)

In the 5th part of the series "25 basics of Mediation" I would like to write about the legal requirements for mediators. The legislator specifies three fundamental aspects of the role: Independence, neutrality and impartiality.

These requirements are formulated in the Mediation Act, which has been in force since 2012.

• § 1 para. 2"The mediator is an independent and neutral person […]"

• § 2 para. 3"The mediator is equally obliged to all persons."

Independence and neutrality

Independence according to the legal materials person- or media-related, Neutrality, on the other hand, is process- or object-related. In addition, a linguistic differentiation is noticeable that is made in the specialised literature (but not in the legal text itself), § Section 1 (2) MeditationsG): Independence is often formulated in such a way that it covers the "being" of the mediator, while neutrality describes the mediator's "behaviour". The mediator must be independent be and neutral towards the mediants behaviour.

My question: I don't know whether this is a coincidence or whether I read selectively, but it struck me as striking. What experiences have you had with regard to this linguistic differentiation? Or do you? If you have any relevant references and texts, please let me know in the comments.

The requirements of independence and neutrality relate to the "characteristics" of the person who has been engaged as a mediator. If the mediator does not act neutrally or is not independent, he or she is still the mediator and remains the mediator. However, such Inadequate mediation services with the corresponding consequences applicable to service contracts (no reduction, but possibly liability for damages!).

What independence of the mediator means

According to the law, the mediator must be an "independent person". This means that he or she must be independent of the mediants. The mediator must therefore not be subject to instructions or have a similar relationship with the mediants. Three constellations can be distinguished:

• One Personal dependency exists if the mediator is a close or even intimate friend, relative or in-law of a person. A (hidden) intimate enmity is also a personal dependency. In such cases, there is a high probability that the mediators will no longer be able to maintain a professional distance and will lose their independence.
• An economic dependency exists if the mediator maintains contractual relationships with a party that go beyond mediation. It is therefore likely to be problematic if one party is a regular client of the mediator and the mediator is now to support this party in a conflict as a mediator. However, this does not regularly preclude further mediation. However, it is a circumstance which, according to § Section 3 (1) Mediation Act is to be revealed.

Problem case: However, whether a "internal" mediator is dependent within the meaning of the law simply because he acts on behalf of his employer in disputes between other employees is expressly doubted here. Of course, such employed mediators are dependent on the salary of the organisation as a whole. However, the organisation as a whole is not automatically a direct party to the mediation. In any case, a clear clarification of roles is required in advance! 

• This case of the "internal" mediator also affects the Constellation of being bound by instructions. However, even in this respect, being bound by instructions on the basis of an employment contract does not per se negate independence as a mediator. It also depends on the degree of role clarification so that the mediator can act as a conflict mediator.

What neutrality of the mediator means

Neutrality is also in § Section 1 (2) Mediation Act regulated. Neutrality is usually understood to mean the impartial conduct of negotiations, which is primarily aimed at equal treatment.

While independence is more a question that could be answered at the beginning of the mediation process, the question of neutrality is more relevant during the process – because it covers the behaviour of the mediating third party. 

However, as indicated, this is a distinction that is not overly significant. Constellations are also conceivable in which independence is known during the proceedings and, conversely, neutrality could be questioned in advance. 

Neutrality is sometimes seen as an essential source of the mediator's authority in the process. It is derived from the image of the judge in legal conflict resolution, in which the desire for equal treatment does not allow either one's own interests or the interests of the parties to take centre stage.

For the trained mediator, this sounds quite absurd because they have just learnt that the interests of the parties (rather than their conflict positions!) are the most important levers for bringing the conflict to an agreement. However, the neutrality requirement is about ensuring that the interests are not weighted differently and that one party is favoured or neglected over the other.

Behind the term Neutrality is nothing unusual or fabulously new, because neutral behaviour by any third party in the conflict must be neutral. What neutrality means has already been sufficiently explored in General Conflict Management with reference to the judge in legal conflict management. This neutrality is not (or no longer) guaranteed, for example, if information is not passed on equally to all parties. Neutrality places special demands on the external appearance and behaviour of the third party so that any doubt about the neutrality of the third party is mentally nipped in the bud. Because already mere doubts can (and regularly do!) suffice to deny or have to deny neutrality, because the risk is too high for the parties involved. To put it more clearly: counter-evidence is generally not suitable for saving neutrality, but only digs deeper into the realm of doubts about neutrality!

Example: Mediators must refrain from expressing their opinion on the issues in dispute or even taking sides in the conflict, when they are trying to overcome the bipolar thinking of the parties to the dispute.

However, this does not mean that the mediator may not pursue any interests at all, as this would be contrary to the principles and functioning of mediation. Rather, the mediator must always conduct the proceedings in such a way that the Interests all Parties must be observed. However, this already leads to the requirement of Impartiality.

DigressionFinally, with regard to the characteristics of independence and neutrality, it should be noted that they cannot be clearly distinguished from one another. Together they are the prerequisite for the mediator to be accepted by the parties. Independence and neutrality are rather "cool" qualities that may go hand in hand with personal distance and a certain lack of approachability in terms of content. At least as associations. They are identical to the virtues of (arbitration) judges - for whom it is also unusual and immediately conspicuous if they are not observed.

The characteristic of impartiality, which distinguishes the mediating third party from other third parties in conflict management (arbitrators, judges, mediators), is quite different.

The main element of the mediator's role: impartiality

Contrary to neutrality and independence, the in § Section 2 (3) Mediation Act described Impartiality is the connecting element between mediator and parties"The mediator is equally obliged to all parties.".

While the lawyer must always consider the interests of his (individual) client, and the judge only the value judgements of the law, the mediator's "interests" are supra-partisan and in this sense all-partisan. This is a consequence of the different approaches to conflict managementThe controversial, competitive "co-operation" of the respective opposing parties in court is intended to enable dialectical justice. In mediation, there are only the parties involved; the aim is precisely to overcome the role of opponent and the co-operative interaction between the parties to the proceedings.

The characteristic of impartiality requires professional participation, empathy and respect. The mediator is not already impartial if he or she is not in the "camp" of one of the mediants; rather, he or she must have a The idea of support and challenge of those involved, which activating the co-operation relationship and creative potential of those involved works. The mediator acts impartially with regard to the Personsbut above all with the idea that only a common path leads to a common goal, which is why it is particularly important for Co-operation in the truest sense of the word. And all this, without falling into an ideology of co-operation, but can also allow separations and farewells.

Examples: The mediator acts impartially if he ensures that all parties are given as much time as they need to present their concerns. In doing so, the mediator must act according to the personal abilities and character traits of the mediating parties in order to do equal justice to both. This requires far more (social) psychological concepts than mathematical notions of fairness that everyone "gets" the same amount of time. 

In addition the mediator should also be able to balance power imbalances between the parties, e.g. by - temporarily - as mouthpiece serves the "weaker" party in terms of communication. In this respect, impartiality may also manifest itself in protective measures in favour of one party.

In practice, impartiality is realised on three levels.

The levels of impartiality

The posture level 

Communication is not a question of technique, but of attitude. This applies in full to mediators. Mediators need a positive view of themselves, people and the world. All their actions and communicative interventions that are conducive to cooperative conflict resolution are fuelled by this.

The only thing that is beneficial here is a basic attitude such as that of transactional analysis with the concept of "I'm ok, you're ok." points out.

The behavioural level 

At the behavioural level, it is important that the attitude is expressed accordingly and that there is a chance that the mediants can perceive an impartial approach. Impartiality is then evident in all communicative interventions, the various questioning techniques, balanced active listening, paraphrasing and other mediating techniques.

The median level 

By enriching the levels of impartiality with this level, it is possible to take into account the constructions of reality of all parties involved. Even if the mediator is and appears to be impartial, this does not mean that the parties to the conflict also see and evaluate things this way. For mediation, however, it is their view that matters. This is decisive for the progress of the mediation. The other levels or the objectified view of impartiality are important when it comes to the question of poor performance and partiality on the part of the mediator.

So much for the three legal requirements for the mediator. They are legal requirements for a successful Mediation and, at the same time, the opportunity for those involved in the conflict not (only) to use their conflict to think in terms of scarcity, to tighten their collective belts, to give in to the feelings of threat in the conflict in order to subsequently determine the victims, identify the perpetrators and celebrate the saviours. No, but to prudently evolutionary advantages of co-operation that challenge creativity, but also encourage it, and want to be explored through strategic and generative dialogues – this is what the requirements for the mediator are for.

Hazards in practice

A word about the practice of mediation: The terrain in which mediators operate is highly unsuitable for maintaining neutrality and independence! Because even foreign conflict landscapes, once they have been entered into, mobilise one's own conflict patterns and activate the third party's system of values, experience and, above all, disappointment! Every conflict harbours its own abysses, the entrances to which are paved with one's own upheld values. And every person has the ability to arouse sympathy and/or antipathy simply by their presence - even in mediators.

In short and in terms of systems theory, starting mediation as a mediator increases the chances of losing your independence, neutrality and impartiality towards the parties to the conflict. Loving your neighbour is always more difficult than loving the person next to you.

Therefore, quite apart from the possible legal consequences, it is urgently necessary for the practising mediator to embrace the value of reflection and supervision, to constantly review their own current practice with supervisors, mentors and/or in peer groups. Or how do you see it?