Authored by - Francis Ojok (International Arbitration and Dispute Resolution)
In its commitment to serving as an institution dedicated to preventing, de-escalating, managing, resolving, and transforming conflicts into opportunities for positive change, the DC Mediation and Dispute Resolution Institute organized a virtual event with the theme "Neutrality Trap: The Danger of Staying Silent." The event (watch recording here) featured Kenneth Cloke as the opening keynote speaker, followed by a panel discussion with Joyce Mitchell, Honorable Dr. Sherif Elnegahy, Tina Patterson, and Mohammed Kamel Hadieh. Dr. Sukhsimranjit Singh, PhD, delivered the closing keynote address.
OPENING KEYNOTE SPEECH BY KENNETH CLOKE, PhD
Dr. Cloke provided a comprehensive understanding of the principles of neutrality and the dilemma that comes with it. Emphasizing that neutrality permeates various aspects of our lives, affecting our interactions with our partners, clients, and parties involved in mediation. He underscored its political implications as citizens of different countries and global citizens.
Despite its complexity, mediators are often described as neutral, implying that they are impartial and have no vested interest in the outcome of the dispute. Dr. Cloke highlighted the common understanding of neutrality in mediation, where parties expect the mediator not to be biased against them. At the same time, bias in their favor is often perceived as fair and just.
Referencing Desmond Tutu's assertion that neutrality in situations of injustice aligns with the oppressor, Dr. Cloke argued that neutrality may not always make sense, especially in power-based systems or institutions like dictatorships, power-based couples, families, and workplaces. In contrast, it holds significance in right-based institutions like courts, where neutrality is viewed as a condition for a just outcome, given the inherent limitations of exercising power.
Dr. Cloke delved into the historical roots of the concept of neutrality, attributing its origins to Aristotle's three laws of logic. He pointed out the limitations of these laws in the context of mediation, where statements can be simultaneously true and false. This complexity, he argued, contributes to the challenge judges face in delivering a zero-sum outcome in judicial processes.
Drawing on his experience as a judge and arbitrator, Dr. Cloke highlighted the difference between the roles of a judge and a mediator. While a judge adopts a distanced stance to uphold neutrality, mediators, in contrast, embrace multiple perspectives simultaneously. Mediators, he asserted, can be emotionally attuned to the individuals involved, acknowledging the emotional experiences that may not fit neatly into the adjudication process.
Dr. Cloke challenged the notion of complete neutrality, asserting that it is an unattainable ideal, particularly when individuals bring diverse backgrounds and perspectives. He emphasized the importance of acknowledging and addressing biases, especially in conflicts, where biases can lead to boundary violations, perpetuate stereotypes, and hinder genuine understanding.
In navigating conflicts, Dr. Cloke advocated for separating the person from the problem, being hard on the issue and soft on the person. He criticized the oversimplification inherent in a neutral stance, which, in specific contexts, fails to address the complexity of human experiences. Dr. Cloke argued that true justice involves understanding the self-interest of both parties, fostering dialogue, and recognizing the shared humanity that transcends biases.
Challenging the conventional view of neutrality as a virtue, Dr. Cloke contended that neutrality, when taken to extremes, becomes a facade that hampers genuine connection, empathy, and the transformative power of mediation. Instead, he encouraged mediators to embrace an omni-partial stance, being on everyone's side while maintaining the capacity for empathy and compassion.
In conclusion, Dr. Cloke called for a shift from the illusion of neutrality to a more authentic, emotionally engaged approach to conflict resolution. He highlighted the dangers of neutrality, limiting the mediator's ability to be fully present and perpetuating a detached and passive-aggressive demeanor that hinders proper understanding and reconciliation.
II. PANEL DISCUSSION
How does the traditional notion of neutrality complicate the participation of dispute resolution professionals in speaking out against conflict, atrocities, and injustice?
According to Hon. Dr. Elnegahy, response to this question varies depending on the professional role one adopts. A judge, for instance, will offer a distinct perspective, as will a human being and a mediator. As a judge, my understanding of justice was grounded in the law. While pursuing my PhD in the UK, I grappled with the general question of whether mediation could administer justice, and the concept of neutrality loomed large during this period. I questioned whether it conflicted with or complemented justice. As I began practicing meditation, the dilemma persisted. I contemplated whether the settlements reached were genuinely fair. Should I permit parties to proceed knowing they might secure better outcomes through the court system?
It took time to reconcile these concerns. I found solace by probing whether the parties were aware of alternative options. This realization underscored the profound value of mediation—self-determination. Parties deciding what works best for them based on their perspectives, rather than me imposing a notion of fairness, became the cornerstone.
Neutrality represents just one facet of the mediation process. The other critical element is the parties' self-determination. Before dispute resolution professionals decide to vocalize opinions, a crucial consideration is whether it aligns with the desires of the involved parties—what they perceive as fair and just.
In conclusion, conflicts seldom culminate in war, irrespective of their scale. Instead, they conclude through some form of agreement. As a mediator, I have chosen not to assert my personal views, anticipating that one day, parties will recognize the futility of violence and turn to mediation for resolution. A mediator who refrains from expressing personal opinions is a more effective facilitator in helping parties reach a consensus.
Desmond Tutu said: “If you are neutral in situations of injustice, you have chosen the side of the oppressor. If an elephant has its foot on the tail of a mouse and you say that you are neutral, the mouse will not appreciate your neutrality.” What is our responsibility as mediators in such situations? How does this responsibility play out in international conflicts?
In his response to this quote, Hon. Dr. Elnegahy stated that the response varies depending on your role in the dispute resolution process. Whether you are actively mediating the case or a mediation professional not involved, it could also differ if you are from a country involved in the conflict.
As a mediator directly involved in resolving the conflict, my primary obligation is facilitating communication and guiding the parties toward a mutually acceptable resolution. A resolution is only genuinely achieved if a sense of fairness replaces the prevailing anger and negative emotions within the hearts of the involved parties. In the role of mediator, I adhere to the principle of self-determination, prioritizing the parties' informed consent. This approach is a powerful tool to establish equilibrium and foster understanding between conflicting parties.
On the other hand, when serving as a mediator external to the conflict, the situation becomes delicate. Expressing personal opinions may jeopardize the potential for future mediation. Maintaining impartiality is crucial, as speaking one's mind could diminish the likelihood of being a trusted resource when parties engage in dialogue and seek resolution. It is essential to preserve the opportunity to assist parties in reaching an amicable settlement by refraining from expressing personal views that may compromise that role.
As per Mohammad, a sustainable agreement is one where both parties find common ground, ensuring that one party doesn't dominate. As mediators, our responsibility is to assess the deal critically, fostering a perspective that encourages individuals to understand the other side. Delving into the intricacies of enforcement is crucial in ensuring the long-term success of any agreement, stating that mediators play a pivotal role in guiding parties to envision a shared future. While signing the agreement may seem straightforward, the real challenge lies in its effective enforcement.
Impartiality or neutrality is often defined as disinterestedness in the outcome of the dispute and the absence of real and perceived conflicts of interest concerning the dispute and the parties. What is neutrality, and does genuine neutrality exist for a mediator in any dispute?
Responding to this question, Tina stated that disinterestedness and neutrality are intertwined. As a mediator, you need to be disinterested. The idea of disinterestedness is often confused with uninterestedness. Disinterested means, as a mediator, you are an observer. You are in mediation, not with the stake in the dispute and not with the desired outcome. Being disinterested is an opportunity for a mediator to stay in without judging and expecting a result for the parties involved.
Disinterestedness is tied to neutrality because people think it's the same, yet it's not. Being disinterested does not mean being neutral. Putting on my arbitrator hat, I'm disinterested in not showing any bias or desire for one to have their way versus another party.
Being disinterested is challenging, whether in mediation or negotiation, because it requires the person leading the dialogue to constantly be aware of how much of your behavior or desire is in the game. Regardless of what you think, what you determine to be fair may not be the same for the parties. You can be empathetic but from a mindset of being disinterested.
It's of paramount importance for a mediator to be impartial and neutral because parties look at them as people who could help them determine what the solution to the problem is going to be. It requires being neutral in our active listening, reframing, etc. Being neutral does not only mean being neutral from the parties. It also involves self-reflection, i.e., am I being neutral? Am I open to what I hear from the parties? Am I using the same language they said to me as I reframe back? And if you are not, you need to step back. And because parties look up to us not to be biased, a mediator must have emotional intelligence and self-reflection.
Should mediators engage in interventions intended to address asymmetries in asymmetrical conflicts? Can and should mediators "equalize the parties"? What are the risks of those types of interventions?
In Joyce’s response, in life, things happen, which prompts us to reflect on our global identity and our commitment to resolving conflicts for the greater good. Serving as the chair of the human relations commission in my community, I vividly recall bringing my son to various hearings, where people discussed pressing issues, such as the challenges faced by the LGBTQ+ community on the beaches of Ocean City, Maryland. My son, curious about the perpetrators, asked who they were. I explained that they were ordinary individuals who become aggressors when confronted with what they dislike, infringing upon others' rights. This realization prompted me to hold hearings, ensuring my son absorbed the importance of addressing such injustices.
Embracing neutrality is foundational to our role as conflict resolvers. Neutrality involves refraining from favoring one's or a specific party's interests when resolving disputes between entities. Identifying common ground and determining the parties to be heard is crucial, recognizing that silence is not always a problem and being listened to may depend on factors beyond vocal expression.
As neutrals, we may choose to remain on the periphery of a dispute, yet there are ways to contribute constructively. Upholding the belief in the universal human right for all, I acknowledge my discontent with current events, such as those in the Middle East and the Black Lives Matter protests. However, I have learned to navigate the complexities, understanding that my role as a neutral sometimes involves staying behind the scenes. During the Black Lives Matter protests, when questioned about my absence in the streets, I emphasized that my impact lay in sending my children, recognizing the potency of the younger generation's voices over mine.
My professional journey, initiated as a criminal law lawyer, led me to discern the significance of selecting when and where to advocate and the appropriate approach. Neutrality, when resolving disputes, demands steadfast impartiality. Yet, as world citizens, we are responsible for engaging in endeavors that leverage our learned, educated, and knowledgeable positions to advocate for justice.
In our capacity as mediators, continuous education and active participation in public forums become essential tools. Our goal should be to bring forth voices that may otherwise go unheard, amplifying the perspectives of those who deserve acknowledgment. Embracing neutrality does not absolve us of our duty as global citizens to champion the rights and respect of every individual. Instead, it empowers us to contribute while adhering to the principles of fairness and impartiality.
On the other hand, Tina responded, stating, In my mediation practice, I've employed various tools, particularly at the outset, when establishing ground rules. It's crucial to communicate to the involved parties that silence is acceptable. Yet, it's equally important to ensure everyone has an opportunity to express themselves. It's particularly significant to address asymmetry, where individuals feeling disempowered might struggle to have their voices heard.
I adopt an approach that emphasizes inquiry rather than interrogation to navigate this. By asking questions like, "Is there anything you would like to add?" and then allowing a pause, I provide a space for those who may otherwise be overshadowed to contribute to the conversation.
However, handling asymmetry poses challenges. Some may perceive attempts to rectify imbalances as bias or favoritism toward one group over another. It's essential to strike a balance and avoid reinforcing stereotypes. I address this by carefully monitoring how often I call on specific groups, ensuring they have had ample opportunities to express themselves. If someone is not ready to speak, I respect their silence rather than pressuring them.
Recognizing and acknowledging asymmetry is crucial in seeking viable solutions. Imbalances can arise from generational or cultural differences, power dynamics, and other factors. To address this, I thoroughly explain the mediation process to all parties, minimizing misunderstandings. This transparent communication sets the stage for ongoing checks to ensure everyone is heard and understood.
Maintaining a delicate balance is essential. It's crucial to avoid perceptions of bias or favoritism while ensuring inclusivity. As a mediator, I aim to prevent accusations of overlooking particular perspectives and ensure that our solutions are comprehensive and representative of the entire community, encompassing the voices of younger individuals, elders, women, and every relevant stakeholder.
Reflecting on history, what lessons can be learned about the dangers of silence and the importance of maintaining neutrality in current political conflicts, specifically in the Middle East and North Africa?
According to Mohammad, Silence perpetuates the illusion that wrong is okay, and it's time to break that silence. The ongoing conflicts in the Middle East persist because of a lack of communication. The cost will be significant if we don't address this issue and remain silent.
We must engage in open dialogue. We must actively listen, pose questions, and foster understanding. Through communication, we gain insight into each other's fears, interests, needs, current situations, and future aspirations.
Building something together is not only possible but necessary. Even in the complex situation between Israel and Palestine, I firmly believe that coexistence is achievable. It requires people to approach the situation with goodwill, genuinely striving to understand one another. The key lies in initiating and nurturing trust. It's time to begin the process of building a foundation for peace.
Final thoughts from the panelists.
An invaluable aspect of communication and facilitation is fostering dialogue, even amidst challenging circumstances. In those difficult moments, serving as a neutral intermediary and encouraging individuals to express their frustrations openly can be transformative. Prompting them to articulate their perspectives and ensuring their voices are heard. We then inquired about their willingness to converse with the opposing party. Through my experiences, I've learned that cultivating patience, persistence, and guided intuition is fundamental to understanding individuals.
Ultimately, the goal is to bring these individuals together at the right juncture, creating a platform for them to engage in meaningful dialogue.
As mediators, maintaining neutrality in an international conflict revolves around our commitment to avoiding undue influence. Simultaneously, our objective is to guide the parties toward crafting solutions that transcend short-term fixes, emphasizing sustainable, long-term resolutions. With a keen awareness of the historical factors leading to the conflict, we can avoid regressing to the initial state of discord.
Non-enduring agreements can prove unsustainable and may be perceived as unjust or imbalanced, perpetuating the cycle of instability. Our role as mediators entails fostering enduring resolutions that address the root causes and contribute to a fair and balanced international landscape.
CLOSING REMARK BY SUKSHIMRANJIT SINGH, PhD
Dr. Singh emphasized Mohammad’s point that engaging in meaningful conversations within our community (mediators/ neutrals) is an insightful endeavor. Stating that while we often work with disputants, the necessity of discussing matters amongst ourselves is sometimes overlooked. He posed a challenge by provoking the thought of whether neutrality itself is a form of bias.
The very notion of being neutral may constitute a bias. This question arises because what truly bothers us is right before us, yet we tend to avoid confronting it. A call for a forum to break the silence is a poignant reminder of our tendency to ignore, distract, and seek solace in false comfort.
Humans have mastered the art of self-deception, maintaining both a private and public face. In today's world, the duality of our narratives, the need for internal peace, and the desire to control our public image while harboring private convictions are becoming increasingly prevalent.
Let's delve into the concept of self-deception and question the trajectory of our human society. Despite identifying as neutrals, are we unwittingly biased? I have recently delved into the study of hatred and discovered its interdisciplinary nature. Hatred, the foundation of our human condition, lacks a comprehensive academic synthesis that holistically examines the issue. We must transcend our affiliations as Jews, Muslims, Hindus, Christians, and universalists and unite as a community of philosophers, academicians, and practitioners. The need to break free from self-deception is apparent as we navigate the dichotomy of narratives within our minds.
Narrative one tells us we are good citizens doing our best, while narrative two questions the impact of our actions. The fallacy with narrative one is that a single click or like suffices. There are two significant issues: distancing ourselves based on group affiliations and underestimating the power of individual actions.
Empathy, too, has its limits, often constrained by subconscious biases. We must question our comfort zones and acknowledge the self-deception that governs our actions. Living by the five controlling objectives—safety, social circle, public perception, private conviction, and self-deception—compromises our honesty.
To truly understand the human condition, we must challenge ourselves to step into situations that demand our collective help. Comfort has become a choice of words, exemplified by instances like choosing an electric car while ignoring the environmental impact of frequent international flights.
The crux is our willingness to address pressing issues collectively and sustain our efforts over time. Creating willingness involves delving into education, awareness, open dialogue, personal narratives, and systemic problems contributing to hate. The next generation must be taught to embrace courage and be catalysts for change.
As a community, we must reflect on what we leave behind for future generations. They are witnessing individual actions and evaluating our collective impact on the world. My advice is simple: beyond talking, we must listen, change our minds, understand our motivations, and sustain the motivation to bring about positive change.
Our ultimate challenge is overcoming biases that hinder effective communication and listening. By fostering a genuine willingness to address societal issues collectively, we can pave the way for lasting change.