The Ethics of Neutrality When the Playing Field Isn't Level

Mediator neutrality is fundamental, but what happens when there's a significant power imbalance between the parties? One party may have legal representation while the other does not, or one may be far more sophisticated in business matters. In these cases, strict neutrality can feel like an injustice.

The mediator's role is not to "level the playing field" by acting as an advocate or advisor for the weaker party. This would destroy your neutrality. Instead, your duty is to ensure the integrity of the process.

This means you must work harder to ensure the less powerful party understands the process and is empowered to make their own informed decisions. You can do this by:

• Slowing down the pace. Ensure they have enough time to consider proposals and ask questions.

• Encouraging them to seek legal advice. You can say, "This is a legally binding agreement. I would encourage you to have a lawyer review it before you sign, even if it means adjourning for a day."

• Using clear, simple language. Avoid legal jargon and check for understanding frequently.

• Reality testing robustly. In caucus, gently probe their understanding of their legal position and the consequences of the agreement.

Your goal is not to force a "fair" outcome, but to ensure that any agreement reached is the result of a fair and understood process.