In today’s fast-paced global economy, businesses face increasing pressure to resolve disputes efficiently while preserving relationships critical to their success.

While litigation is sometimes necessary, it is often costly, time-consuming, and adversarial, straining partnerships and draining resources. Mediation, by contrast,

offers a strategic alternative—one that not only resolves conflicts effectively but also fosters long-term business stability and economic sustainability.

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Mediation: A Relationship-Oriented solution

Mediation is a voluntary and confidential process facilitated by a neutral third party, aiming to help disputing parties reach a mutually agreeable outcome. Unlike litigation or arbitration, which prioritize winning over collaboration, mediation emphasizes dialogue, mutual understanding, and future cooperation. Experienced mediators facilitate open communication, helping parties rebuild trust and goodwill. A 2024 report by the International Chamber of Commerce (ICC) highlights that 80% of businesses using mediation under ICC Mediation Rules reported improved communication and stronger partnerships post-resolution, compared to only 35% for arbitration-based outcomes. This collaborative approach ensures disputes do not derail valuable commercial relationships.

Mediation’s ability to preserve relationships is exemplified by real-world cases. For instance, a 2023 JAMS case study detailed how mediation resolved a $20 million contract dispute between a U.S. technology firm and its Asian supplier over intellectual property rights. By addressing underlying concerns—such as licensing terms—through mediation, the parties not only settled the dispute but also established a new joint venture, generating $75 million in revenue over two years. Similarly, a 2024 CEDR mediation between two European pharmaceutical companies resolved a €15 million supply chain dispute, preserving a 10-year partnership critical to both firms’ operations.

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Enhancing Business Relationship Stability

Whether between suppliers, joint venture partners, or clients, business relationships are often more valuable than any single transaction. Mediation supports stability by:

• Preserving partnerships: Sensitive business information remains private, preserving corporate integrity and trust.

Mediation encourages solutions that satisfy both parties, fostering ongoing collaboration. A 2024 AAA report found that 87% of businesses that resolved disputes through mediation continued their partnerships, compared to only 40% after litigation.

• Reducing hostility: The collaborative environment minimizes reputational damage and emotional strain.

By focusing on mutual interests, mediation minimizes adversarial dynamics that erode trust. A 2023 CEDR case study documented a £8 million dispute between a UK retailer and its logistics provider, resolved through mediation in six weeks, maintaining a partnership that accounted for 20% of the retailer’s supply chain.

• Ensuring confidentiality: Sensitive business information remains private, preserving corporate integrity and trust. Unlike public court proceedings, mediation protects proprietary data, critical for multinationals in competitive industries.

Testimonials from multinational corporations underscore mediation’s impact. In 2024, Siemens AG reported using mediation to resolve a $50 million dispute with a Latin American energy partner, saving an estimated $7 million in legal costs compared to litigation and enabling a new $120 million renewable energy project. A 2025 testimonial from Unilever, published by Mediate.com, highlighted how mediation resolved a $10 million dispute with a Southeast Asian supplier, avoiding $3 million in potential losses and strengthening a supply chain critical to its regional operations. Additionally, a 2024 ICC Mediation Roundtable featured a testimonial from a Fortune 500 retailer, which credited mediation with preserving a $200 million distribution agreement with a Middle Eastern partner, avoiding costly arbitration.

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Driving Economic Sustainability

Mediation contributes to economic sustainability by reducing costs, enhancing efficiency, and supporting long-term business viability:

• Cost savings: Mediation is significantly less expensive than litigation. A 2023 World Bank report estimated that mediation costs 65–85% less than litigation globally, with average mediation expenses ranging from $8,000 to $40,000 compared to $150,000–$600,000 for litigation in complex commercial cases. For example, a 2024 ICC mediation case involving a $30 million construction dispute saved $4 million in legal fees and resolved the matter in two months, compared to an estimated 24 months in court.

• Time efficiency: Mediation resolves disputes faster, allowing businesses to focus on growth. The ICC’s 2024 Dispute Resolution Statistics reported that mediations under ICC Rules typically take 1–2 months, compared to 12–36 months for litigation, reducing downtime and opportunity costs. A 2023 AAA case study noted a mediation that resolved a $5 million dispute between two U.S. manufacturers in three weeks, saving $500,000 in lost productivity.

• Systemic benefits: In regions with overloaded or underdeveloped judicial systems, mediation alleviates pressure on courts. A 2024 UNCITRAL study found that countries with robust mediation frameworks saw a 35% reduction in commercial case backlogs, enhancing economic stability. For example, Bahrain’s Chamber for Dispute Resolution (BCDR) reported in 2024 that its mediation services reduced court caseloads by 20% for disputes exceeding $1.3 million, boosting investor confidence. Beyond dispute resolution, mediation serves as a proactive enabler for businesses.

Companies like Procter & Gamble have integrated mediation clauses into contracts to facilitate negotiations and prevent conflicts. A 2024 Harvard Business Review article highlighted how a global pharmaceutical company used mediation to structure a $300 million joint venture in Asia, aligning partner interests and avoiding future disputes. Similarly, a 2025 ICC report noted that 37 mediation requests were filed under ICC Mediation Rules in 2024, with 60% involving proactive negotiations to establish partnerships or prevent disputes, demonstrating mediation’s role in business enablement. The Hong Kong government’s 2024 decision to incorporate mediation clauses in all government contracts further underscores mediation’s strategic value in fostering business collaboration.

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Conclusion: Mediation as a Strategic Business Tool

For over three decades, mediation has proven to be a cornerstone of sustainable economic growth—not just by resolving disputes but by strengthening relationships critical to business success. The ICC’s 2024 statistics, reporting 61 new mediation cases, reflect growing global trust in mediation’s ability to deliver efficient, cost- effective solutions. Mediation supports these relationships by resolving conflicts in a way that promotes understanding, respect, and mutual benefit. In a world where commercial disputes are inevitable, choosing mediation can determine whether a business merely survives or truly thrives. As Joseph Grynbaum aptly stated, “An ounce of mediation is worth a pound of arbitration and a ton of litigation.” By embracing mediation, businesses can achieve cost-effective, relationship-preserving solutions that drive economic sustainability and long-term success in today’s interconnected global economy.

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Mediation is a form of resolving disputes amicably. This process is confidential, flexible, time efficient, and cost effective. Most importantly, meditation protects relationships and allows parties to resolve disputes outside of the courtroom. Nowadays, most common family disputes involve divorce settlements, child custody, inheritance and estate matters. The emotional and mental health strains of family conflicts are already significant, even without the added pressure of legal proceedings. Therefore, as a cooperative process, mediation mitigates the harm of conflict, reduces stress, and supports mental wellbeing, all whilst preserving important relationships.

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Unlike commercial disputes, family disputes often involve emotional bonds, whether it is between siblings, spouses, parents, children, or extended family. In most cases, it causes significant stress and anxiety, as it threatens parties’ sense of stability, safety, and security. Whether a conflict arises owing to child custody, inheritance, or divorce, this leads to uncertainty as it involves life changing outcomes that will affect the future. Such uncertainty may leave parties in a constant state of worry.

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Emotional challenges such as grief and loss may arise from separation and broken relationship bonds. Parties may feel a strong sense of sorrow, whether from the loss of shared dreams, future plans, or tangible separations. This type of grief often impacts professional life, personal growth, and decision making.

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For example, in divorce settlements, parties often go through a ‘grief cycle’. This emotional response involves several stages which include ‘denial, anger, bargaining, depression, and acceptance’. Therefore, it is important for individuals going through a divorce to access adequate support and consider alternative ways of resolving conflict. This highlights the value of mediation, especially since the traditional litigation process can often add to the emotional strain. Through good communication and a willingness to compromise, parties undertaking mediation can work towards an outcome that is less emotionally harmful. This not only reduces stress but also increases the likelihood of a long term resolution that meets everyone’s needs.

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Family disputes do not only affect the parties involved, but also family members around them. In cases of divorce, children may experience a significant amount of stress owing to the change of routine and environment which can cause confusion and uncertainty. Children may experience emotions such as sadness, anger, loneliness, and embarrassment. 3 This can lead to major consequences such as an increased risk of developing mental disorders, behavioral changes, lack of focus and drop in academics and social life. Therefore, parents must prioritize their children’s needs and carefully consider the most appropriate and least harmful method to resolve their dispute and ensure that relationships are preserved to limit the emotional stress and hardships that may arise.

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Litigation proceedings have negative impacts owing to the emotional dynamics present in family disputes. When parties avoid litigation, it minimizes conflict and stress as the court process is adversarial by nature. Litigation proceedings often place parties against each other leading to a ‘win-lose’ mentality. This makes it difficult for parties to maintain a cooperative relationship. In court, decisions are bound by legal principles, statues, and precedents. Therefore, judges may not have the flexibility to study each unique family dynamic. Moreover, court records are usually public and may expose personal details of a family conflict, leaving no room for confidentiality. Overall, litigation is an expensive and time onsuming method of dispute resolution that causes a significant amount of stress on all parties involved.

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There are cases where litigation in family conflicts may be the most effective method of resolving disputes. For example, matters that involve safety concerns such as allegations of abuse and violence. It may be necessary to resolve it in court to protect the safety and wellbeing of a child or parent. In cases where all attempts of mediation have failed and no resolution has been met, the court can offer a binding decision.

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According to ‘Family Law Mediation’, 7 out of 10 mediation cases are successful, however it is important to note that there are no guarantees.  In order to reach a successful mediation, the help of a trained mediator, a neutral third party who obtains skills to facilitate a productive discussion in a supportive and safe environment is essential. Signs of a successful mediation include improved communication, sense of relief, and mutual understanding between the parties.

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The main key factor in mediation is that it preserves relationships and reduces mental strain, which is important in family matters. This method offers a constructive approach where both parties can communicate effectively leading to a ‘win-win’ mentality. The goal of mediation is to reach a resolution that satisfies both parties, it is a flexible process that allows parties to dictate the outcome of their matter which is specifically tailored to their family needs. It is a highly confidential process where parties can resolve disputes without making their personal and sensitive information public.

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Mediation promotes mental health and de-escalates family disputes by improving communication and collaboration. It allows parties to listen to each other’s perspective and reduces misunderstandings. Mediation supports emotional healing owing to its empathetic nature. It makes parties feel understood and heard which will contribute to moving past such conflicts. This method also encourages parties involved to focus on their futures by establishing a solution through an optimistic approach instead of focusing on the past.

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Due to the sensitive nature of family disputes, it is essential that individuals considering alternative dispute resolution methods fully understand the emotional and relational implications. Without proper care, these processes can inadvertently result in significant emotional harm. Mediation is a constructive way of moving forward and resolving disputes in a less stressful manner. It protects relationships and is a human-centered method that prioritizes mental health. When done thoughtfully, mediation offers a path that not only resolves legal issues but does so in a way that minimizes further emotional damage and supports the long term wellbeing of everyone involved.

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Sara Nassif

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‍Analysis:
Mediation has taken on greater importance as an alternative dispute resolution method (ADR), well established in Europe and North-America. However, what is the appetite in the Gulf region for this resolution mechanism, particularly where we have situations in which parties have strong emotions, resist the idea of a solution, or wish to hold on to their stand often to their own detriment. This is where the role of the mediator comes in. All situations are not equal, and while mediators have their own style, there are techniques & strategies that can guide them to effectively address specific challenges and navigate the mediation process successfully. This article aims therefore to guide mediators to in addressing these challenges and guiding the mediation process effectively.

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1. Absence of decision maker in the mediation process

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‍It is essential that the parties to the mediation have the necessary authority to agree to any proposed outcome and be bound by the terms of the mediation. To prevent this from hindering the mediation, the mediator can:

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- Request a delegation of powers: Prior to the commencement of the process, the Mediator may request the attending parties to provide a delegation of authority, ensuring the representative can make or negotiate decisions during the mediation. In the absence of this, and depending on the circumstances, the Mediator may suggest postponing the mediation until the delegation of authority is obtained or the decision maker can attend or be available throughout the process. This would help in setting the stage for a productive process and help lead to enforceable agreements.
-Propose real time communication with the decision maker throughout the session/process: the Mediator may propose setting up communication channels between the representative and the decision maker to facilitate immediate consultations and decisions during the process, enhancing efficiency and facilitating the settlement agreement’s signing.

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2. Lack of genuine participation by one or both parties

There are certain situations, where parties are brought to mediation because of a legal obligation to do so, even if it is voluntary through contractual agreement, the reality is that when it comes to the actual process, the parties may not be fully implicated or believe that the process will help resolve their dispute. Therefore, If the Mediator perceives a lack of genuine participation from one party, they should emphasize the advantages of active engagement, highlighting the potential for a more satisfactory and sustainable resolution. The Mediator could highlight the cost savings, time efficiency, confidentiality, flexibility, and party autonomy that mediation offers compared to other methods. The Mediator should emphasize the parties’s control over the outcome of the process and the potential to preserve their relationship. The Mediator should respectfully explore the parties’ reasons for their disengagement and address any underlying issues hindering their willingness to participate genuinely. The Mediator can help them explore creative and mutually beneficial solutions unavailable in court or arbitration.

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3. Resistance by one or both of the attorneys in pursuing the process or having an alternate agenda such as going through the court system

This is a difficult one, since those who are meant to advise their clients as to the benefits of resolving their dispute in the most cost effective and efficient manner, may be actually the ones stalling or vouching for its failure. In order to counteract this, the mediator should:

-Communicate with the parties separately: if the Mediator believes that the lawyer of one of the parties is just going through the motions, they should consider meeting with the parties individually, without their lawyers and vice versa. This allows the mediator to assess each party’s commitment and readiness for mediation and address any concerns and remove any barriers to engagement. It also provides an opportunity to build rapport and trust, while educating both parties and their lawyers about the mediation process and their roles.

-Managing the lawyers’ involvement: the Mediator can highlight the crucial role lawyers play in reaching a resolution and encourage them to be active and constructive participants. This might involve asking the lawyers and their clients to list their interests and priorities, and brainstorm possible solutions that could satisfy both sides. The Mediator could also invite the lawyers to share their legal insights with all the parties,helping clients to evaluate the risks and benefits of different proposals. Acknowledging and appreciating the lawyers’ contributions can reinforce their professional relationship with clients, and underscore the value of their work.

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4. Power Imbalance between the parties

In mediation, power imbalances between parties can significantly impact the process and outcome. Mediators should strive to create a balanced environment by providing the weaker party with resources and guidance to articulate their interests, needs, and goals effectively. This preparation enhances their confidence and competence without favoring one side. Mediators can also use private meetings to explore motivations and address power-related issues, ensuring both parties participate effectively. It's crucial for mediators to maintain neutrality while managing these dynamics. Here are some techniques which will allow the mediator to address this balance of power:

-The extent of the Mediator’s involvement: the Mediator should provide the weaker party with resources and guidance to help them articulate their interests, needs, and goals, enhancing their confidence and competence. This support should aim to  balance the negotiation without favoring one side. Private meetings can be used to explore motivations and address power-related issues, allowing the mediator to subtly balance power dynamics and facilitate dialogue. Maintaining neutrality and impartiality is essential.

-Granting equal opportunities to speak: the Mediator should ensure that both parties have equal opportunity to speak and contribute. Techniques like active listening and paraphrasing and open-ended questions can demonstrate understanding and validate perspectives encouraging mutual listening.

By focusing on common grounds and possible solutions, the mediator can ensure fairness and effectiveness, building trust in the process while remaining non-judgmental.

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5. Party’s make premature concession or committing to an unachievable/unrealistic position

In mediation, parties may sometimes make premature concessions or commit to unrealistic positions, which can hinder the negotiation process. Mediators can employ specific strategies to address these challenges and guide parties towards more achievable and mutually beneficial outcomes.

- Calling for caucus or private meeting: Mediators can use private meetings to discuss the implications of premature concessions or unrealistic positions, allowing parties to express their feelings without fear of weakening their stance. These sessions can help uncover underlying interests and identify non-monetary issues influencing decisions. Mediators can also facilitate the generation of alternative, more realistic options and test the parties' willingness to implement them.

- Conducting a reality testing for the party’s position: by exploring the practicality and implication of the positions or concessions. Open-ended and hypothetical questions can challenge assumptions and encourage parties to evaluate the risks and benefits of their offers. Using objective criteria, such as legal standards or market values, provides a neutral basis for assessing positions and encourages movement towards a fairer range. Some example questions the mediator can ask are:
"How do you think the other party might react if they find your opening offer too extreme, disrespectful or humiliating?”
“What might be the consequences if your initial offer is perceived as unreasonable by the other party?”,
“What if the other party does not agree with your proposal?”; or
“What if the court decides differently?”
The Mediator can also use objective criteria, such as legal standards, market values, expert opinions, or industry norms, to provide a neutral and credible basis for assessing the reasonableness of the party's position or concession, and to encourage them to move towards a more realistic or fair range.

-Normalizing the dance: Mediators should explain the negotiation process, emphasizing that it involves give and take. Thus, encouraging them to adopt a more reasonable stance. By helping parties save face while making concessions, mediators ensure that dignity is maintained and that offers lead to beneficial compromises. The Mediator can frame such offer in a way that the decisions being made lead to a beneficial compromise, thus facilitating a more informed decision-making process and reasonable stances.

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6. Internally or externally imposed deadlines

In mediation, deadlines—whether internally or externally imposed—can significantly influence the negotiation process. Mediators must navigate these time constraints carefully to ensure they do not disrupt the balance of power or compromise the integrity of the mediation. By strategically managing deadlines, mediators can help parties remain focused and motivated to reach a resolution. Here are some recommended strategies for mediators when dealing with deadlines:

- Reminding the parties of relevant deadlines: the Mediator should keep the parties informed about existing deadlines and the potential consequences of not meeting them, ensuring that all parties are aware of time constraints.

-Avoiding the disclosure of hidden or unilateral deadlines: while the Mediator is encouraged to use deadlines as time constraint to urge the parties to settle, the Mediator should be careful not to disclose/reveal a unilateral or hidden deadline that one party confidentially disclosed to the Mediator.

-Managing power imbalance resulting from unilateral deadlines: when a deadline is relevant to one of the parties and not both, the Mediator should be careful that deadlines do not create power imbalance in the relationship between the parties. Thus, the Mediator’s role in such a scenario is to skillfully manage the power dynamics.

-Encouraging the parties to set deadlines: in the absence of deadlines, it is advisable for the Mediator to encourage the parties to establish them unilaterally or jointly to enhance the negotiation outcomes. The Mediator is advised to do this in a caucus or a private meeting while being careful that such move does not jeopardize the Mediator’s neutrality. Jointly set deadlines promote a sense of shared purpose and commitment. Breaking a hard position under a strict deadline: if a party maintains a rigid stance under a strict deadline which may result in serious consequences to costs, some of the strategies that the Mediator should use: (i) notice the pattern and name the tactic in private or in joint session. This would require the Mediator to identify and address the negotiation tactics being used and make the party aware of its behavior and its effects on the negotiation process; (ii) reality testing for the tactic in private. This would involve the Mediator discussing the possible outcomes and realistic expectations with the party showing a hard position or resisting concession; and (iii) help the parties save face while making concessions.

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7. Intense emotions involved

In mediation, intense emotions can significantly influence the dynamics and outcomes of the process. To effectively manage these emotions, mediators should employ the following strategies helping create a safe and constructive environment, enabling parties to express their emotions productively and work towards collaborative solutions:

-  Acknowledgment of emotions: the Mediator should recognize, understand and respect the parties’ emotions without sympathizing, judging or minimizing them. This approach helps parties feel heard and reduces defensiveness and hostility. Additionally, the Mediator should monitor their own emotions and reactions, and avoid being influenced or triggered by the parties' emotions. This can help the Mediator maintain neutrality and professionalism, preventing conflict escalation or loss of credibility.

-Creating rapport with the parties: establish a safe environment for parties to express their emotions by building rapport during the communication and exploration phases, typically in joint sessions, by using key communication techniques such as body language, reflective listening, active listening, and breaking communication barriers. Furthermore, the Mediator should establish and consistently enforce ground rules like, such as confidentiality, respect, and civility, and enforce them consistently and fairly. This can help the parties feel safe and comfortable to share their emotions and perspectives, and prevent disruptive or abusive behaviors. The Mediator should also employ humor, empathy, and positive feedback to create a more relaxed and cooperative atmosphere, and to reinforce the parties' efforts and achievements. This creates a relaxed, cooperative atmosphere, reinforcing parties' efforts and achievements, and building trust and rapport.

-Separating people from the problem: the Mediator may help the parties direct their emotions towards productive problem solving by depersonalizing issues, while preserving dignity. The Mediator should separate people from the problem and try to understand their underlying interests and needs, such as why things are important, what are the key concerns, and why a party wants what it is asking for. Moreover, the Mediator should assist the parties in reframing their emotions from positions or demands to interests or needs, and to identify and address the underlying sources of their emotions. This approach encourages a shift from a competitive mindset to a collaborative one.

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8. Situations where beliefs, values and morals are relevant

In mediation, situations where beliefs, values, and morals are relevant can present unique challenges and opportunities. Mediators can employ specific strategies to navigate these complexities effectively. These strategies help mediators facilitate constructive dialogue and reach agreements that honor the parties' core values.

-Appealing to beliefs: the Mediator can facilitate agreement by appealing to the parties’ beliefs, values or morals. Identifying and emphasizing shared beliefs, values or morals of the parties can serve as a foundation for reaching an agreement.

-Turning the beliefs into interests and needs: the Mediators can help transform beliefs, values or morals into concrete interests and needs. By uncovering the underlying interests that drive the parties’ positions, mediators can assist parties in seeing beyond their own perspectives, especially when strong beliefs are involved.

-Changing the parties’ relationship: Instead of attempting to change beliefs or values, mediators should focus on improving the relationship between the parties. This involves encouraging discussions that promote mutual respect and understanding. Mediators can work towards not only finding a mutually acceptable solution but also transforming the parties' relationship by enhancing their communication and interaction.

-Mediating across generations or different nationalities or cultures: an effective Mediator should be sensitive to the diverse perspectives brought by participants from different generations, nationalities or cultures. Avoiding stereotypes and demonstrating cultural competence are crucial. Mediators should understand how cultural differences impact communication styles, approaches and perceptions, while respecting and valuing the unique insights and viewpoints that each party contributes to the mediation.

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9. Mediator accused of being biased

In mediation, accusations of bias can undermine the process and the mediator's credibility. To address such concerns, mediators should employ strategies that invite open dialogue and reaffirm their commitment to neutrality, by doing the following:

-Inviting the parties to share their perspective and expectations: when accused of bias, the Mediator should invite the concerned party to express their perspective and expectations regarding the mediation process and the Mediator's role. Active and respectful listening is crucial to acknowledge the party's concerns and feelings. The Mediator should also encourage the other party to share their views and experiences, clarifying any misunderstandings about the mediator’s role. This approach aims to foster a dialogue that promotes mutual understanding and trust between the parties.

-Affirming his/her neutrality: after understanding the party’s perspective and clarifying any role-related misunderstanding, the Mediator should reaffirm their neutrality. Addressing specific concerns about bias or fairness involves openly discussing the mediator's commitment to impartiality. The Mediator should explain their adherence to ethical standards that guide professional mediators, using these principles to justify their approach to the mediation process.

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In summary, the strategies outlined in this article serve as a valuable resource for mediators navigating the intricate dynamics of conflict resolution. Each strategy is designed to address specific challenges, ensuring that mediators can effectively facilitate communication and promote understanding between parties. Recognizing that every mediator brings a unique style to their practice, these strategies can be adapted to suit various situations and the diverse needs of the parties involved. By embracing this flexibility, mediators can enhance their ability to guide parties toward mutually beneficial outcomes.

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Written by Christine Maksoud, Founder of the Mediation Hub and Senior Counsel at Al Tamimi & Company and Zouhdi Yakan, Advisory Council Member of The Mediation Hub and Partner at Shaikha Almehrzi Advocates & Legal Consultants- LAW HOUSE

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Published by LexisNexis (https://www.lexismiddleeast.com/eJournal/2025-02-10_13/)

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Neutrality is often held up as the cornerstone of mediation, a beacon of fairness ensuring balanced outcomes. Yet, this hallowed principle might not be as straightforward or as beneficial as it seems. When we peel back the layers, neutrality reveals itself as a nebulous ideal—challenging to define, difficult to achieve, and questionable in its desirability. In the context of mediation, especially, it is time we reconsider what neutrality truly means and whether we need it at all.

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The Trouble with Defining Neutrality

Neutrality in mediation demands a mediator’s absence of bias or partiality requiring vigilance against both explicit bias towards a specific party as well as unconscious bias. It encompasses treating parties equally, having no personal stake in the outcome, and avoiding any influence from financial interests or external pressures like the government. Yet, as scholars like Astor and Mayer point out, these definitions are neither comprehensive nor universally accepted. For instance, Mayer dissects neutrality into structural, behavioural, emotional, perceptual, and aspirational dimensions, each with its own complexities.

The confusion further extends to neutrality’s overlap with impartiality. Some argue neutrality means the absence of pre-existing relationships, while impartiality refers to being unbiased in the mediator’s conduct. Others use the terms interchangeably, further muddying the waters. This lack of clarity makes neutrality a challenging concept to pin down and apply consistently in practice.

Moreover, the very idea of being entirely neutral is contradictory, and in reality, challenging, owing to the very nature of the concept, which is evident from its definition as discussed, thus leaving it more as a theoretical aspiration. If neutrality requires mediators to have no personal perspective or influence, can such a role ever truly be fulfilled? Astor notes that mediators often bring their experiences, perspectives, and values into the process, consciously or unconsciously. Thus, even if one were to strive for perfect neutrality, human nature itself might render this impossible.

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Can Neutrality Truly Be Achieved?

If defining neutrality is hard, attaining it is even harder. Mediators are human, shaped by their own experiences, cultural contexts, and subconscious biases. Becker’s critique emphasises that even seemingly innocuous actions—a slight nod, a word choice—can betray a mediator’s influence. Empirical studies show that mediators often guide conversations, steer outcomes, or unwittingly favour one party over the other, even when striving for neutrality.

Power imbalances further, exacerbate this issue. In cases where one party holds more sway—economically, socially, or otherwise—strict neutrality might in fact, perpetuate injustices rather than resolve them. Feminist and critical legal scholars highlight how an insistence on neutrality often disadvantages marginalised groups, unintentionally aligning mediators with the more powerful party. In such scenarios, neutrality becomes a paradox: treating parties equally can entrench inequalities, while addressing these disparities violates the principle of neutrality. It is of course debatable whether rectifying any systemic power imbalances is in the first place within or outside the mediator’s purview. Nonetheless these considerations further question the attainability of neutrality.

Neutrality also falters in high-conflict or emotionally charged disputes. Mediators tasked with keeping the peace might naturally favour approaches that calm tensions, inadvertently sidelining parties who are more confrontational but equally valid in their grievances. This inclination further reveals how neutrality may skew the mediation process without the mediator’s conscious awareness.

Despite these challenges, some argue for the possibility of “external neutrality,” where mediators consciously separate their biases from their actions. This approach however relies on self-awareness and self-regulation—skills that are often easier said than done. Ultimately, as Boulle succinctly puts it, neutrality remains “the most pervasive and misleading myth about mediation.”

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Is Neutrality Even Desirable?

The discussions above, forces one to question that even if one could both define and attain neutrality in certain circumstances, is it actually desirable? Scholars like Mayer argue otherwise, suggesting that disputants often seek more than a neutral facilitator. Parties in mediation frequently need guidance, advocacy, and support—roles that a strictly neutral mediator cannot fulfil. By clinging to the neutrality ideal, mediators might miss opportunities to build trust, foster open dialogue, and address power imbalances effectively.

Research supports this shift. Studies reveal a positive correlation between mediator assertiveness and successful settlements. Active involvement, rather than detached neutrality, often leads to more equitable outcomes. Furthermore, aspirational neutrality can constrain mediators, forcing them to navigate between opposing demands: detachment and proactive intervention. This tension hampers their ability to address the real needs of the parties involved.

In some situations, neutrality might even harm the mediation process. For instance, in cases involving domestic abuse or extreme power imbalances, a neutral stance risks legitimising the status quo, leaving the disadvantaged party without meaningful recourse. There is of course, the ethical dilemma regarding whether such extreme cases should be mediated at all, but then at least mediators who adopt a more active role can challenge these dynamics and create space for equitable solutions.

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Alternatives to Neutrality

So, if neutrality falls short, what should replace it? Scholars like Mulcahy and Astor propose more practical, nuanced approaches.

Transparency and Bias Acknowledgment

Mulcahy advocates for transparency. Rather than feigning impartiality, mediators should openly acknowledge their biases and values. This approach shifts the focus from the mediator to the parties, empowering them to make informed decisions about the process and its outcomes. Transparency fosters trust and encourages an honest, collaborative environment.

Transparency also promotes accountability. When mediators openly disclose their potential biases, they invite scrutiny and dialogue, creating a more balanced power dynamic. For example, a mediator handling a corporate dispute might reveal a prior background in corporate law. This disclosure allows parties to weigh the mediator’s perspective and adjust their expectations accordingly.

Reflexivity and Inclusivity

Astor emphasizes the importance of self-awareness in mediation, urging mediators to recognize how their cultural, political, and personal experiences shape their perspectives. Rothman extends this idea with a reflexive approach, arguing that true neutrality is unattainable. Instead of striving for detachment, mediators should engage in disciplined self-reflection—becoming aware of their biases and assessing how these influence their interactions with parties. Reflexivity allows mediators to consciously navigate their own perspectives while ensuring they do not unconsciously reinforce power imbalances.

Inclusivity is a natural extension of this reflexive practice. By acknowledging their own positionality, mediators can better engage with underrepresented voices and marginalized perspectives, ensuring that all parties feel heard. This does not mean imposing an external sense of fairness but rather fostering an environment where diverse viewpoints shape the mediation process. In doing so, mediators enhance not only the perceived fairness of the process but also the durability of its outcomes.

At its core, reflexivity does not undermine party autonomy but strengthens it. By being attuned to their own influence on the process, mediators can more effectively empower parties to take ownership of their disputes and solutions. This shift from an illusion of neutrality to an engaged, self-aware practice ultimately leads to a more inclusive and equitable mediation experience.

Advocacy and Empowerment

Mayer and others suggest moving beyond neutrality toward advocacy. Mediators can play an active role in levelling the playing field, ensuring that disadvantaged parties have a voice. This doesn’t mean taking sides but rather facilitating a process where fairness prevails over rigid adherence to neutrality. In doing so, mediators must however ensure that their efforts to promote fairness are truly shaped by the parties’ circumstances and the mediation process itself rather than their own sense of justice.

Further, advocacy doesn’t necessarily compromise the mediator’s role. Instead, it redefines it. By advocating for equitable participation and ensuring that power imbalances are addressed, mediators can enhance the integrity of the process., This is, however, only attainable if done with restraint. A mediator must intervene enough to prevent exploitation or coercion while avoiding actions that could be perceived as favouring one side. The challenge lies in distinguishing between necessary intervention and undue influence. In cases where one party lacks resources or knowledge, a mediator’s guidance can bridge these gaps without undermining the overall fairness of the proceedings. Having said that, the line between guidance and advocacy is thin, and crossing it risks shifting from facilitation to partiality. Mediators must always consider that their role does not involve championing an outcome but creating conditions where parties can negotiate on more equal footing without distorting the process in favour of one side.

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A New Vision for Mediation

In conclusion, one may argue that the time to reassess the significance of the pursuit of ‘neutrality’ in mediation is now upon us. Instead of neutrality, embracing approaches that prioritise fairness, transparency, and empowerment can help mediation evolve into a more effective, inclusive, and just method of dispute resolution.

Further, while neutrality might be overrated, the potential of mediation is not. Let’s reimagine the mediator’s role—not as a passive observer but as an active facilitator of equitable outcomes. The result? A mediation process that truly serves its purpose: resolving conflicts in a way that is fair, balanced, and transformative.

By replacing neutrality with more practical principles, mediators can help parties navigate disputes with greater clarity and purpose. Transparency fosters trust, self-awareness, reflexivity, and inclusivity enhance fairness, and advocacy empowers the vulnerable. Together, these elements form the foundation of a new mediation paradigm—one that aligns with the realities of human interaction and the complexities of conflict.

Ultimately, this shift isn’t just about redefining mediation; it’s about improving it. When mediators move beyond neutrality, they unlock the full potential of their role, enabling outcomes that are not only just but also transformative for all involved.

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