Socio-Legal Constructions of Impartiality in Mediation

Dr Susan Douglas

University of The Sunshine Coast, School of Law, Maroochydore DC, Maroochydore Qld, 4558

sdouglas@usc.edu.au

The National Mediator Accreditation System (NMAS) 2015 requires that accredited mediators demonstrate an understanding of ‘impartiality, including the avoidance of conflicts of interest.’ In the original version of the NMAS established in 2007 mediators were required to demonstrate an understanding of ‘neutrality and impartiality’. The 2015 amendments to the NMAS have omitted any reference to neutrality. The NMAS 2007 requirement that mediators understand both neutrality and impartiality suggests that these two concepts are separate and distinct. Yet while some scholars distinguish them, others treat them as synonymous. It is timely to consider the similarities and differences ascribed to these concepts and to explore their meaning in the context of actual practice. This paper reports on an empirical study of the meaning attributed to the concept of impartiality by mediation practitioners as part of a larger study of the meaning attributed to neutrality and impartiality. The sample of mediators is drawn from a Family Relationship Centre and a government funded community mediation service. The research design used is qualitative, consisting of a series of in depth interviews. Analysis proceeds from a grounded theory approach and social constructionist ontology. The results demonstrate significant socio-legal construction of impartiality in mediation, which extend the often purely legalistic definitions found in the literature. These wider constructions have implications for the practice of impartiality in mediation.

Biography:

Susan (Sue) works as is a legal academic at the University of the Sunshine Coast who identifies as a socio-legal scholar. Her background includes law and social work. She is a volunteer with the Suncoast Community Legal Service  (SCLS), where she conducts an employment law clinic and is a member of the SCLS management committee. She is also a long time committee member of the Maroochy Neighbourhood Centre management committee and actively engaged in social justice projects there. Sue’s research interests include appropriate dispute resolution, non-adversarial justice, humanising legal education and wellness in law.

About the Association

The Australasian Institute of Judicial Administration (AIJA) is a research and educational institute associated with Monash University. It is funded by the Law, Crime and Community Safety Council (LCCSC) and also from subscription income from its membership.

The principal objectives of the Institute include research into judicial administration and the development and conduct of educational programmes for judicial officers, court administrators and members of the legal profession in relation to court administration and judicial systems.

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