I was recently reviewing an old 2018 Mass. Lawyers Journal and in the Dispute Resolution Section Review, I came across an article entitled “Just How Important is Neutrality in Mediation?” by Jeanne Kempthorne. In the article, Ms. Kempthorne hypothesizes that mediators are rarely purely “neutral” or “impartial” and that, for various reasons she enumerates, they almost always have some “skin in the game” (the quote is a reference to the common phrase and not taken from her article). Whether mediators with any conscious or subconscious biases should recuse themselves from the mediation process is the question she grapples with throughout the article.
For example, she points to the United States’ role as a mediator of world conflicts. It cannot be said that the US (and its mediators) are neutral since it, in every instance, has a stake in the outcome. She also points to a more nuanced, and inherent, bias of neutrals in the mediation process. She asserts that mediators of private disputes—those that come before neutrals in the litigation setting—frequently develop bias in favor or against a party or side because either a) they may subconsciously support a parties’ position, b) by virtue of their knowledge of the law or legal process, they become biased for or against a party, or c) because of a mediator’s natural leaning towards settlement, they become biased against a recalcitrant party.
