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Neutrality, NFL Referees, Federal Judges and Mediators

I'm just back from a Judicate West retreat where we discussed the legal, practical and ethical issues of "neutrality."  So it is with no small amount of interest that I read Concurring Opinions provocative post I Trust NFL Officials More than I Do Federal Judges (h/t Quizlaw).  

Here's what Erik Lillquist has to say about the NFL official/federal judge comparative neutrality quotient:

My motivation for the title of the post is that I think NFL officials are actually better than judges on a number of these scores. For instance, NFL officials do not have the repeat-player problem. Furthermore, NFL officials are graded on all their calls, from every game, ensuring that the same calls are being made in all situations (and these days, they have to contend with the possibility of instant replay review on every call). And unlike federal judges and (to a certain extent) major league umpires, NFL officials are subject to the real possibility of termination for poor performance, something that cannot happen to Article III judges and rarely happens with major league umpires. As this LA Times article notes, between 2004 and 2007, there was actually more new Supreme Court justices than new (full-time, I assume) major league baseball umpires. In the NFL, on the other hand, turnover is more common. Because being a NFL official is so relentlessly competitive, the result is that (I think) NFL officials are more likely to get the call right than your typical judge (or umpire). 

To say neutrality is not precisely defined in mediation theory and practice is a vast understatement.    Consider these definitions of neutrality as reported in a "Knowledge Base Essay" on Neutrality at Beyond Intractability.

According to experienced mediator Robert Benjamin, neutral mediators:

  • will not intervene in the substance of the dispute;
  • are indifferent to clients' welfare;
  • have no relationship with the parties outside of the mediation;
  • will not attempt to alter perceived power balance differences;
  • are disinterested in the outcome; and
  • are unconcerned with the impact of the settlement on unrepresented parties. 

In contrast, Kevin Gibson, Leigh Thompson, and Max Bazerman (1996) identify three distinct conceptions of neutrality.

  • Neutrality as impartiality, which holds that the mediator should be free of bias and should set aside his or her opinions, feelings, and agendas.
  • Neutrality as equidistance, which focuses on the idea that mediators should try to give equal consideration to each side.
  • Neutrality as a practice in discourse. Mediators are supposed to shape problems in ways that give all speakers a chance to tell their story in a way that does not contribute to their own de-legitimization or marginalization.
  • The mediator gives each side a chance to talk about their positions and concerns, and then reframes these issues in a more neutral way so that parties are more likely to listen to and understand the other side's viewpoint. 
  • Then the mediator helps the parties to explore settlement options and to move toward a solution that all can agree on. Neutrality means that the mediator who facilitates this discussion should not have an interest in advancing the goals and positions of any party involved.

Similarly, Rachel Field (2000) points out that the term 'neutrality' encompasses "issues such as

  • a lack of interest in the outcome of the dispute,
  • a lack of bias towards one of the parties,
  • a lack of prior knowledge of the dispute and/or the parties,
  • the absence of the mediator making a judgment about the parties and their dispute, and
  • the idea that the mediator will be fair and even-handed." 

Thoughts from our readers?

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