It is sometimes thought that because the mediator decides nothing, the mediator’s independence matters less than a judge’s. The truth is closer to the opposite. The parties to a mediation lower their defences, disclose their interests, and negotiate candidly precisely because they trust the person conducting the process. That trust is the process. A mediator who loses it — or who never properly earned it — has nothing left to offer.

Two duties, often confused

Impartiality and neutrality are related but distinct. Impartiality concerns the mediator’s conduct during the process: the duty to act even-handedly between the parties, to give each a fair opportunity to be heard, and to avoid favouring one side in word, manner or structure. Neutrality concerns the mediator’s relationship to the outcome: the mediator has no stake in whether the parties settle on terms favourable to one or the other, and no interest — financial, professional or personal — in the result.

The established codes of conduct to which reputable mediators subscribe, including those of the Centre for Effective Dispute Resolution and the Chartered Institute of Arbitrators, and the European Code of Conduct for Mediators, give these duties practical content.

What the duties require in practice

  • Disclosure before appointment. A mediator must disclose any circumstance that might give rise to a reasonable doubt about independence — prior dealings with a party, a relationship with an adviser, an interest in the subject matter. Disclosure does not always disqualify; the parties, fully informed, may consent. Concealment always disqualifies.
  • Even-handedness in structure. Equal opportunity to speak in joint session; broadly comparable time in private session; and care that the shuttle of offers does not quietly become advocacy for one side.
  • Discipline in private sessions. What is learned in confidence from one party is not to be conveyed to the other without authority. The mediator holds two confidences at once, and must be scrupulous with both.
  • Restraint in evaluation. Where the parties want an evaluative mediator — one who will express views on the merits — the evaluation must be offered to both sides with the same candour, not deployed to move the stubborn party towards the mediator’s preferred result.

The party’s perspective

For parties, the practical counsel is straightforward. Ask the proposed mediator for their disclosure in writing. Read the mediation agreement’s provisions on the mediator’s role. And during the day itself, expect even-handedness without mistaking it for softness: a good mediator will test your case rigorously in private session, and will test your opponent’s with equal rigour. That rigour, applied equally, is not a departure from impartiality. It is what impartiality looks like when it is working.

The mediator’s authority is borrowed entirely from the parties’ trust. The duty of neutrality is simply the obligation to remain worthy of the loan.