To improve neutrality. Both of the decision making process and of the outcome.
1. To emphasize the interest of the parties (including parties directly involved, but also parts of the group or society) in a decision to emphasize
2. To clearly explain the positions of the parties;
3. To present the problem essentially stripped of any non or less relevant side issues;
4. To present the problem as much as possible without the personal interests (if possible in this case, of course) by abstracting the problem and in general to consider; possible solution (s) indicating once again the problem is specified and individualized
In order to ensure neutrality of a forth party, who participates in the mediation process and reach a fair decision for the parties; mediators have to:
Promote the use of objective criteria: In Rwanda the interviewed paralegals and Abunzi noted that it is important that the neutral party applies legal norms. Legal aid organisations provide easy to read summaries of laws to people to make the law known to them.
Collaboration between paralegals and customary dispute resolution providers: At Timap in Sierra leone, A second reform orientation involves improving the customary system from within, which paralegals do in myriad ways. They help to transform discriminatory customary laws by identifying and engaging fair-minded paramount chiefs. In one village in a mining area, for example, paralegals advocated with the local chief to coordinate promulgation of new bye laws for regulating child labour in the gold mines.
from: TIMAP for justice and the interplay between sierra leon's formal and informal legal systems, Simeon Koroma (download here)
Resorting to court in case of unfairness: For example in Siera Leone, Timap has challenged instances of unfairness and exploitation in the customary system through legal action in the formal court system.
Promote a good motivation: the organisation RCN promotes a good motivation through a decision-making format that they have provided to a group of Abunzi in Rwanda.
Important role of the neutralIn the absence of representation, informal court judges and tribunal chairs have a difficult task. It has also shown that they hold the key to procedural fairness and have an important influence on the outcome of hearings.
Genn, H. (1993). Tribunals and Informal Justice. The Modern Law Review, 56(3)
Neutrality doesn't mean to be free of values, but it requires understanding of the cultural values of both parties, and a decision on the basis of reflection on these values.
Astor, H. (2007). Mediator Neutrality: Making Sense of Theory and Practice. Social and Legal Studies 16(2)
Making people aware of emotional bias
DeMayo, R. A. (2007). "Practical and Ethical Concerns in Divorce Mediation: Attending to Emotional Factors Affecting Mediator Judgment." Conflict Resolution Quarterly 13(3): 217-227.
Promote empathyAsk them to both imagine themselves in the both parties position, and to think about how both parties would feel about the decision.
Batson, C. D., D. A. Lishner, et al. (2003). "“... As you Would have Them Do Unto You”: Does Imagining Yourself in the Other's Place Stimulate Moral Action?" Personality and Social Psychology Bulletin 29(9): 1190-1201.
Promote the use of objective criteria.Court must apply neutral principles to cases. For Wechsler, a neutral principle consists of two elements: content generality and equal applicability.
Herbert Wechsler, Toward Neutral Principles of Constitutional Law, 73 Harv. L. Rev. 1 (1959).
Promoting a good motivation
All the Supreme Court really want to know it learned from the Warren court, . Sherry, 1997 50 Vand l. review 481
Giorgio Pino, Neil MacCormick on Interpretation, Defeasibility, and the Rule of Law, 201
P.O. Box 80523
2508 GM The Hague
+31 70 3589221 (phone)
+31 70 3549766 (fax)
Faculty of Law, Tilburg University
Room M 907 (Montesquieu Building)
PO Box 90153
5000 LE Tilburg
+31 (0)13 466 2281 (phone)
+31 (0)13 466 2323 (fax)