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Neutrality, Self-Determination, Fairness and Differing Models
Journal article   Open access   Peer reviewed

Neutrality, Self-Determination, Fairness and Differing Models

Susan Douglas
James Cook University Law Review, Vol.19, pp.19-40
2012
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Abstract

Law mediator neutrality
Mediator neutrality and the self-determination of parties are important principles of mediation practice. Both are articulated in the National Mediator Accreditation System. In problem-solving models neutrality and self-determination are constructed according to the distinction between process, and content and outcome which in turn reflects a recognised distinction between procedural and substantive fairness. Transformative and narrative models do not separate the process of mediation from its content and hence differently construct the role of the mediator and optimal outcomes for parties. This paper examines critique of problem-solving models including critique of the mediator's limited role in ensuring substantive fairness. It compares constructions of the role of the mediator across models in relation to principles of neutrality, self-determination and fairness, both procedural and substantive fairness. It argues that none of the models examined satisfactorily addresses issues of substantive fairness in mediation. It further argues that this gap could and should be filled by critical examination and development of the principle of party self-determination.

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