What Does "Neutral" Mean?

By John L. Watkins

It is often said that mediators are “neutrals,” but there seems to be very little discussion about what “neutral” means. It is, frankly, a word about which I suspect mediators and lawyers would disagree. Here are a few thoughts about what it means to me.

In its most general sense, a neutral mediator will not act or express views based on factors that are unrelated to the dispute. Neutrality does not mean, however, that a mediator needs to be -- to paraphrase a well-known trial lawyer -- a “potted plant.”

A neutral mediator can, at the appropriate time, ask tough questions, also known as reality testing. If a mediator is to help the parties to reach a settlement, he or she needs to help the parties understand the strengths and weaknesses of their cases. It is also important for mediators to sometimes raise the question of whether a judge or jury will see the facts the same way as a party. The principle of neutrality is violated, in my opinion, only when the mediator is not providing equal treatment to both sides.

Depending on the facts of the case, it may be pretty clear that one party has an objectively stronger case than the other. If the mediator is helping the parties understand the strengths and weaknesses, this should become apparent to the parties. If one party is sympathetic or likely to be well received by a jury, it does not, in my view, violate the principle of neutrality by bringing this point to the attention of the other party. This can be done, however, without advocating for the other party. For example, the mediator might ask: “Of course, I understand that you disagree, but what did you think of how Ms. Smith presented her side in the joint session?” Or, “do you think it is possible that some of the jurors may identify with Ms. Smith?”

If a party appears to have a strong case, the mediator can remain neutral and still remind that party of the twenty percent rule, which means that, in litigation, there is always about a twenty percent chance that even a party with the strongest case will lose. It is often surprising the things that jurors will seize on to decide cases, and they may not be readily apparent to those of us with legal training.

For these reasons, I do not think a neutral mediator needs to be a potted plant. In fact, mediators who are nothing more than note carriers do not, in my view, help the parties reach a settlement.

I have previously stated that I would prefer a mediator to be an advocate, but not an advocate for the parties, but for a settlement. What does being an advocate for a settlement (sometimes called being an advocate “for a deal”) mean? It means making sure that the parties have fully explored their respective cases and have fully considered possible settlement terms. It means making sure that the parties fully understand what they are facing in continuing with litigation. If the parties have achieved this, there is a pretty good chance they will reach a settlement.

Of course, not all cases that are mediated settle. Sometimes, the parties just will not get close enough. One of the best points about mediation is that a party cannot be forced to accept a settlement that it does not believe is fair. In representing parties, I have often been surprised how mediation settles tough cases, but there have been other cases where we walked simply because we did not view the settlement offered by the other side to be acceptable.

If a mediator has taken the steps outlined above and has, as is sometimes put, been equally “hard” (perhaps vigorous is a better word) with both parties in helping them explore their cases and the settlement alternatives, then that mediator has, in my view, done his or her job as neutral.