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 - 4.3


Ensuring neutrality

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Purpose

To improve neutrality. Both of the decision making process and of the outcome. 

Solutions summary

This tool applies to all decision making procedure. In order to stimulate the neutrality of process and outcome, facilitators use the following practices. At the start of the process
  • The facilitator can ask the third party to intervene as a neutral. To help the facilitator to let the parties come to a decision. A decision that is fair to both and works for both. It may be helpful to inform the influential party about expectations of the parties, the decision making role and the principles of neutrality and a fair process.
  • Encourage the influential party by making them feel proud if they can find a neutral and fair solution. Suggest that he/she will earn a good reputation, respect from people and especially from the parties to the conflict.
During the process
  • Make arrangements that confirm the neutral role. Place the third party in the middle, facing both parties in the same way. Call him or her a wise person, a mediator, or use another term that confirms the neutrality.  
  • Use symbols that confirm neutrality. This can be a picture. Something on the table. A dress in white or another color that suggests neutrality. 
  • Ask them to think from the perspective of both parties about the dispute and any potential decisions. How would they feel if they were in either of the parties position?
  • Provide the influential party with information about laws and sharing rules related to the dispute.
  • Help the third party to think about good reasons for a decision. How does the decision take the interests of parties into account? 
  • Ask the influential party to support their decision with a reference to norms, laws, or information about similar situations.
  • Enable the third party to use a fair procedure (see Tool 4.4)
Supervising neutrality
  • Ask the parties to give their view on the neutrality of third parties. 
  • Ensure the process and the outcome can be monitored. 
  • Ensure an outcome can be reviewed in an appeal to a (higher) court if necessary. See Tool 4.3 for ways to organize supervision.
  • If possible: ensure that paying/collecting of bribes or other attempts to influence the third party become known.

Local solution: How to Stimulate the Influential Third Party to Promote a Neutral Decision through a Fair Process

 

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

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Added by: DAS

Local solution: promoting neutrality

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:

  • Provide forth party with any information obtained so far from the two parties so that he/she can see the overall aspect of the conflict, especially the actual needs of the two parties.
  • Spend sometimes to explain forth party the important points and aspects such as roles of forth party, neutral principles as well as inform them the reasons of the conflict and obstacles in reaching agreement.
  • Encourage forth party, by showing them of pride if they can find solution based on real neutrality such as he/she will earn good reputation, respect from villagers and especially from the parties to conflict.
  • Provide forth parties with some knowledge of laws related to the dispute.
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Added by: ADHOC

Evidence from practice

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.

 

Evidence from literature

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 is not value free

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

  • Ask them to acknowledge the emotional biases and vulnerabilities that they bring.
  • Pay close attention to situations in which they experience differing emotional responses to the two parties.
  • Tell them that relying solely upon themselves to identify problems might be dangerous.
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

  • Judicial legitimacy rests on offering rationale for decisions that appear to meet popular standards of neutrality.
All the Supreme Court really want to know it learned from the Warren court,  . Sherry, 1997 50 Vand l. review 481
  • Key criteria  of a good decisions are universalizability , consistency, coherence, and acceptability of the consequences of the ruling.
Giorgio Pino, Neil MacCormick on Interpretation, Defeasibility, and the Rule of Law, 201

Ensuring neutrality

by admin on April 2, 2011

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