IMPARTIALITY

& PROCEDURE JUSTICE:

Not only must Justice be done;
it must also be seen to be done

LUK TZU WEI, BRYAN

RESEARCH

QUESTION : What makes a good mediator? Highlight the essential

skills that a mediator should possess according to the process of mediation. Illustrate
your arguments with the support of theories and literature.

Luk Tzu Wei, Bryan |Mediation (impartiality and procedural justice) 1

Introduction
Mediation is a process of affecting the attitudes, perceptions and behaviors of
disputing parties by a third party who are the mediators (Carnevale & Arad,
1996). Generally speaking, mediation is very much an art of influences that
aims for disputes settlement. Therefore, the skills and techniques of the
mediator are vital, and they shall exercise the skills in an effective manner
where they are able to manage the process of mediation in a stable and
consistent way, and to bring out an acceptable outcome to involved parties.
Thanks for the course materials prepared by Prof. Wong Sing-wing, there are a
large number of materials to teach students about the preferable inter-personal
skills for being a good mediator. Indeed, there are several inter-personal skills
which have been assumed to be important to bring an effective and acceptable
mediation (Smith, 1994). For example: a good mediators should show an image
of being Cool, Collective and Calm, the attitudes should be neutral wording,
polite and humble etc.. Apart from the interpersonal skills of the mediators, it
should be noticeable that it is essential to see how the mediators do the
justice during the negotiation in mediation, since the disputing parties would
indeed try to affect the mediator to a position that would lead to a favorable
outcome of either party. In that case, the skills of upholding the principle of
impartial and procedural justice, share the same position with the skills of
inter-personal. Hence the essay is going to briefly introduce the origin,
meaning and importance of those principles, and to explain why a good
mediator shall equip the skills of upholding the principle of impartiality and
procedure justice for the whole mediation process.

Impartiality the fair-mindedness
Impartial, also known as evenhandedness, is a principle or concept of justice
holding that decisions shall be based on the objective per se, in lieu of based on
the ground of bias, stereotyping or prejudice. The origin of this principle could
be traced back to a book named Introduction to the Study of the Law of
Constitution by Dicey (1885). It emphasizes the importance of impartiality -
nemo iudex in causa sua (rule against bias) by stating that the arbiter who is
responsible for deciding the outcomes of the disputes shall act impartially, so
that the involved parties in trial could face a result that is handled in an utmost
neutral manner where the final outcome are decided according to the law free
from the influence of subjective factors. The legal professionals who are the
lawyers, prosecutors and judges thus shall act impartially, and every involved
party could enjoy fair legal services no matter with their accuses, races,
nationalities, classes or genders (Sharman, 1996). Although this principle has a
deep root with legal philosophy, it has also become a major principle for a
mediator to uphold. Noticeably, it is more essential for the mediator to uphold
that principle due to the differences between the practices of judicial and
mediation.

In judicial practice, the designed environment has already minimized any
factor that would affect the neutrality and impartiality of any involved parties,
including the plaintiffs, defendants, lawyers and judge. Firstly, the disputants
Luk Tzu Wei, Bryan |Mediation (impartiality and procedural justice) 2

are advocated by the lawyers, where there are very less direct interactions
among the involved parties. Secondly, the entire trial only focuses on the fact in
which lawyers argue about the laws and facts, and judges follows the role of
adversarial and has supreme authority to decide the results of the case in the
judgement. In contrast, mediation is a very different approach. Unlike the
judicial practice, the environment encourages positive communication where
the mediators solve the dispute via a direct communication among the involved
parties, rather than handing disputes in an ex-cathedra approach. For
illustration, there are total 6 respective steps in mediation, which are the 1)
introductory remarks, 2) statement of the problems by the parties, 3)
information gathering time, 4) identification of the problems, 5) bargaining and
generating options, and 6) reaching an agreement (Stepp, 2003). In the process
of (2) and (3), the mediator would understand the issues of dispute through
letting the parties to describe the issues in their own mind and asking parties
open-ended questions during the negotiation. However, mediators must still
stay neutral after the communication, as in fact emotions would affect certain
degree of perception and decision making of other parties (Brosch, Scherer,
Grandjean & Sander, 2013). In that case, since both parties would have a direct
facial and verbal interaction with the mediators, their emotions are likely to
affect the mediators perception which might lead to a partial manner of the
mediator. Therefore, as the matter of the environment that mediators have to
face, the skill of upholding the impartiality become utmost important for the
sake of creating a fair win-win situation.

In fact, maintaining impartial is useful for mediation. Wall and Dewhurst (1991)
emphasize that impartial behavior is an indication of neutrality, hence it
indeed is the major determinant of mediation success (Favretto, 2009). The
degree of impartiality will affect how successful mediation outcomes can be
achieved (Lee, 2013), as mediators shall be deemed to take no side to either
party, and focus on a win-win situation where the outcome is benefit to both
disputants. Therefore, if the mediator could practice in a way that minimizes
any manifestation of his personal bias or the external pressure, he could indeed
maintain the process of negotiation and outcome as neutral as possible where
both parties can enjoy a fair mediation and share the same benefit in the
outcome.

Procedural Justice the fair process
Apart from the skills of maintaining the impartiality, procedural justice is also
another principle that mediators shall be skilled to uphold it. It is an idea of
fairness and equality in resolving the disputes where every involved party
would face an equal and fair process with no influence from any factors beyond
the fact. The origin of procedural justice could be followed back to history of
natural justice that emphasizes the importance of audi alteram partem (rule to
a fair hearing) (Wade H.W.R & Forsyth C.F., 2009). In legal sense, the court
will place the same procedure to every case which allows parties to prepare for
the trial with the same treatment. Although the origin of it is developed by
legal history, it in fact has been widely used in non-and quasi-legal contexts
Luk Tzu Wei, Bryan |Mediation (impartiality and procedural justice) 3

that are used to resolve conflicts and disputes. In reality, the skill of
maintaining the procedure in a just and fair way is essential of being a good
mediator in the entire process of mediation.

In judicial practice, there are written and non-written laws in different
countries to ensure that the legal procedure is done in a proper way, for
instances: the Procedural Law in United States, the relevant precedents in
United Kingdom, the Civil Procedure for Commercial Disputes Resolution in
Hong Kong etc. In that case, the legal professionals are indeed bound to follow
the procedure in accordance with the written law. However, in the context of
The Hong Kong Mediation Code, there is no clear code or procedure
mentioned to ensure that the designed procedure by the mediators must be
just and fair. In that sense, the way how procedural justice is done is heavily
depends on the skills of the mediator.


In fact, it is believed that the fair procedure is a sine qua non for a fair outcome,
as if people feel that the procedure that are followed treats them in a proper,
respect and digit manner, then they will feel easier to accept the outcomes
(Deutsch M. et all, 2011: 45). In general, the degree to which parties experiences
the procedural justice mainly depends on 4 major grounds, which are
respectively (1) whether both parties can express their perspectives about the
disputes, (2) whether they are treated respectfully, (3) whether they are treated
in a fair way, for example the communication time spent with the arbiter is
even and (4) whether the arbiter act fairly and is trustworthy (Nolan & Annor,
2014). In the case, those grounds are basically related to how the mediators
maintain a fair and respectful negotiation process. In Nolans research (2014), it
finds out that there is a positive correlation among the rate of fairness of the
mediation process, the degree of satisfactory of the mediator and the outcome.
If the procedure is deemed to be unfair, it might increase the chance of failure
in mediation because of the rising chance of negative interactions among
involved party. For the sake of illustrating the aforementioned point, the essay
would cite a mediation example in the course activity by the student of City
University of Hong Kong.


The course activity is a simulated mediation case named Therapeutic Family
Mediation Case John and Maria Smith. Students were divided into 5 groups,
and tried to solve the dispute through the mediation skills learnt from the
lesson. In the case, Maria Smith and John were married. However, the marriage
turned to a negative situation after long term dissatisfaction with John by
Maria. The case was sent to martial counseling, but was subsequently referred
for family mediation, since the conflicts between Maria and John were so serve
that no hope for reconciliation. Then, students were the mediators who took
charge in the mediation process.

During the first section of mediation information gathering, it is noticeable
that the conflicts between Peter and Maria had turned to a more serious
situation because of the omission by the first student group. In fact, the first
Luk Tzu Wei, Bryan |Mediation (impartiality and procedural justice) 4

group had omitted to control the procedure in a proper manner where Maria
had dominated majority time in the first section, which had resulted that Peter
was not able to voice his perspective about the issue with sufficient time.
Hence Peter had even said that why you (mediator) only let Maria expresses
her feeling? After the omission by the first group, the following groups had try
to avoid the same mistake by stating a clear and strict underlying principles to
the disputants before the beginning of mediation, and it resulted a better
negotiation process where the conflicts between the disputants were greatly
curtailed.

In that sense, the procedure of voice out is also an essential elements during
the mediation. Although there are studies suggesting that having the
opportunity of voice was not link to the decision-making (Tyler, 1987), people
still see a procedure or process fairer and more just, even they knew that their
personal expression had little or no influence on the final decision-making
(Tyler, Rasinski & Spodick, 1985). In fact, voice might have an essential value
that is beyond its ability to shape decision-making process and outcomes after
summing up Tylers researches (Tyler and Blader, 2003). Threfore, the
mediators shall equip sufficient skills to uphold the procedural justice during
the entire negotiation process where the disputants can enjoy a fair and just
treatment by the mediators during the negotiation process (such as sharing
similar time to express their perspectives; the mediators provide fair assistance
to each parties etc.), so that the entire process and the final results of the
mediation would be more acceptable to parties.

Conclusion
An oft-quote aphorism by the Lord Chief Justice Hewart describes that Not
only must Justice be done; it must also be seen to be done (R v Sussex Justices,
ex parte McCathy ([1924] 1 KB 256). In mediation, as the mediators are playing
the major role in dispute settlement, thus it is important to see how they
manage the justice during the entire process, especially the disputants often
take the justice in mediation seriously. The mediators must equip sufficient
skill to uphold the principle of impartiality for consolidating his own credibility
and to maintain a fair procedure to show to the disputants that justice also be
seen to be done. In that sense, those two principles are inter-related where
they are reinforcing each other [Please refer Appendix 1 for illustration]. Those
principles are originally developed in the legal history, but it does not necessary
mean that mediation should become a legal-like system. Indeed, they are
actually very useful in the entire mediation process as it could enhance the
legality of the process and outcomes of the mediation. In the nutshell, if a
mediator equips sufficient skill to upholding the abovementioned principles, he
could get twice as much for half the effort in the process of dispute settlements,
which will be easier to achieve acceptable, impartial and achievable outcomes.

Luk Tzu Wei, Bryan |Mediation (impartiality and procedural justice) 5

Bibliography

Brosch, T., Scherer, K., Grandjeana, D & Sander D. (2013). The Impact of
emotion on perception, attention, memory, and decision-making.
Medical Intelligence. Swiss Med Wkly. 2013; 143: w13786.
Carnevale, P.J. & Arad S. (1996). Resolving International Conflicts: The Theory
and Practice of Mediation. (Bercovitch, J. ed.), Lynne Rienner Publisher,
United Kingdoms: 39 44.
Deutsch, M., Coleman P.T. & Marcus E.C., (2011). The Handbook of Conflict
Resolution. John Wiley & Sons, Inc, Jossey-Bass, San Francisco: 45 58.
Dicey, A.V. (1885). Introduction to the Study of the Law of Constitution, London.
Favretto, K. (2009). Should Peacemakers take sides? Major Power Mediation,
Coercion, and Bias. American Political Science Review, 63-248.
Lee, S.M. (2013). Mediator Impartiality and Mediator Interest, Theses and
Dissertation Political Science, University of Kentucky: 21 34.
Nolan J.M. & Annor J. M. (2014). Procedural Justice Beyond Borders: Mediation

in Ghana. Harvard Negotiation Law Review: 7 9.
Sharman, J.M. (1996). Judicial Ethics: Independence, Impartiality, and Integrity,
Sustainable Development Department, Washington, D.C: 15 18.
Smith, D.D. (1994). Mediator Impartiality: Banishing the Chimera. Journal of
Peace Research, vol 31, no. 4: 445 450.
Stepp, J.A. (2003). How Does The Mediation Process Work?, Mediators &
Everything
Mediation,
Mediate.com.
Retrieved
from
http://www.mediate.com/articles/steppj.cfm
Tyler, T.R., Rasinski, K., & Spodick, N. (1985). The influence of voice on
satisfaction with leaders: Exploring the meaning of process control.
Journal of Personality and Social Psychology. 48: 72-81.
Tyler, T.R. (1987). Conditions leading to value express effects in judgment of
procedural justice: A test of four models. Journal of Personality and
Social Psychology, 52: 333 - 444
Tyler, T.R (2003). The Group Engagement Model: Procedural Justice, Social
Identity. And Cooperative Behavior, Personality and Society Psychology
Review 2003, Sage: 350 352.
Wade H.W.R & Forsyth C.F. (2009). Administrative Law - Eleventh Edition.
Oxford University Press, United Kingdom: 405 - 407
Wall, D.Jr. & Dewhurst M.L. (1991). Mediator gender: Communication
differences in resolved and unresolved mediators, Mediation Quarterly,
Vol. 9, Issue 1: 63 85.

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Appendix

By Luk Tzu Wei, Bryan

Luk Tzu Wei, Bryan |Mediation (impartiality and procedural justice) 7