The notion of a neutral in a dispute process tends to suggest someone who sits back and listens. Any intervention should be mild, careful and measured, so as not to endanger neutrality. Neutrals are expected to tiptoe around the parties, carefully stepping through the process, as if walking over hot coals.
I would like to challenge this. The notion of neutrality is a fluid one and a professional neutral should, where needed, be hands on, while maintaining neutrality. Indeed, there are distinct advantages to such an approach.
The best way to develop my thoughts on this is to do so in the context of different neutral process types.
Adjudicatory processes
Where a neutral (or neutral panel) is making a binding decision on a dispute, it is acting as adjudicator. The final decision is what counts.
There is, however, a problem for the parties in such an environment: they don’t know in advance what the final decision will be. You may well say ‘of course, that is the point’. It is. But, does that mean that the neutral(s) must sit back silently and listen as the case unfolds, and then spring its decision on the parties at the end? I suggest this is neither necessary, nor desirable.
This brings me to the role of the neutral in stating a preliminary view on the outcome or on an issue. I believe that even in an adjudicatory context, this is an important role. The neutral has read the papers, knows the competing arguments, understands what the evidence is likely to be (especially with the increasing use of witness statements) and has, in fact, formed a preliminary view on likely outcome.
A word of warning here: there are cases where the outcome can be a surprise to the decision maker. I have made decisions in over 700 cases following an evidential hearing and I can recall very clearly a case where all three members of the Tribunal had formed a strong preliminary view on the likely outcome, only to be confounded by the oral evidence, which drove us to the opposite conclusion. The party we thought would lose won. This only came out in discussions during deliberations, but it was stark.
Such cases are uncommon, but they cannot be ignored. I will come back to this case later. For now, I will build my thoughts on stating a preliminary view.
Specialist tribunals and interventions
In the UK, a significant volume of civil judicial business is handled not in the ordinary, general courts, but by specialist tribunals. They consist of two or three members, chaired by someone legally qualified sitting with one or two ‘specialist’ members. The specialist members are qualified in a discipline relevant to the business of the tribunal: for example, doctor, teacher, health professional, property surveyor, employer.
Disputes in the following areas are handled by this means: mental health, education, immigration, employment, tax, property rental and even war pensions. There are others, these are just some examples.
The idea is that the tribunal uses the specialist members as a way to avoid decisions being taken solely by tribunal members who are lawyers and who may (often will) find it difficult to understand technical matters. The legal chair runs the process, decides on legal questions and drafts the reasoned decision. The specialist member leads on technical matters. One interesting by-product is that many specialist members also understand the law, and as someone who has worked on specialist tribunals for 17 years, I am not too proud to admit to my preliminary view on the law having occasionally been challenged (politely of course) by a suggestion from a legally interested and experienced specialist member.
This system is an excellent and robust decision-making model. For present purposes, it is relevant since the tribunal is expected to be interventionist – to raise issues and pursue lines of enquiry which may not have been raised by the parties (or may have been raised but not pursued as far as might be seen as desirable).
Inevitably, the provisional views of the tribunal members (who are, remember, still neutrals) comes through. Tribunal questions can indicate lines of interest, challenges, concerns (while not being leading). This contrasts with the approach in the UK public courts, where questions from the judge may only usually be asked for clarification purposes [see Jones v National Coal Board [1957] 2 QB 55, applied, for example, in Rea v Rea [2022] EWCA Civ 195, both decisions of the English Court of Appeal in civil cases; see also Tallis v HMA 1982 SCCR 91, applied more recently in G v HMA 2020 SLT 63, both decisions of the Scottish criminal appeal court].
The specialist tribunal model is hands-on, interventionist and inquisitive. None of this diminishes neutrality. The final decision is taken only after all of the evidence and argument is considered.
But the tribunal may go further.
Specialist tribunals and provisional views
Where a neutral who will be making a decision states a view on a point in dispute prior to the conclusion of the evidence and argument (in other words before deliberation takes place), one may take the view that the neutral has compromised their neutrality. This is wrong, however.
The appeal courts in the UK have been clear on this: as long as the view expressed is a provisional (preliminary) one, and is not expressed in trenchant terms, the appearance of bias will have been avoided.
In one case, the tribunal chair stated that the task facing the unrepresented applicant to succeed in the claim was ‘virtually impossible’. This view was based on a reading of the papers, before any evidence was led. The applicant asked the tribunal if it was saying he should give up. The tribunal chair replied: ‘If I was advising you, I would say that’. The appeal court held that since this view was explicitly expressed as a preliminary one, it did not display apparent bias.
In another case, Gourlay v Aviva Insurance Ltd [2019] SAC (Civ) 10, a decision of the Sheriff Appeal Court in Scotland in a personal injury case (this time a personal injury case in the general courts, not in a specialist tribunal), the judge (sheriff) held a meeting of the lawyers of the parties in chambers. This meeting happened after hearing the evidence of the main witnesses for each side, but where there were still two other witnesses to give evidence, followed by argument. The judge stated that the pursuer (the party making the claim) had ‘tailored his evidence to suit the case’ and that he had misgivings about the pursuer’s credibility compared to the credibility of the other party. The appeal court held that these views did not demonstrate a closed mind on the case and stated:
“Looking at the [judge’s] comments objectively, through the eyes of the fair-minded and informed observer, they were intended to be helpful to the parties, providing them with an indication of the sheriff’s preliminary views so that the submissions yet to be made could properly focus on the sheriff’s concerns and on the possibility of contributory negligence. In such circumstances, the fair-minded and informed observer would not conclude that the [judge] had reached a concluded view.” [2019] SAC (Civ) 10, para 33
This might seem surprising, but one needs to consider the context in which the neutral is operating. In the case I mention above in which I was involved, all three tribunal members had formed the same provisional view. In the end, we changed our minds. Our provisional view was wrong. We did not express that view during the case, but if we had, it would not have prevented us from forming a different view in our decision. Those who operate as professional neutral decision makers have to be (as one Scottish lawyer, in describing a judge to me, captured in a single word) ‘persuadable’. That is the most important quality of any judicial decision maker. This implies the ability (and integrity) to change one’s mind, even where a public indication to the contrary is expressed.
I should add that the appeal courts in the cases mentioned above do sound a note of caution: that provisional views should not be expressed too trenchantly, since this might be an indicator of a closed mind. In some UK cases, such a closed mind has been held to have been demonstrated (See, for example, Ellis v Ministry of Defence 1985 ICR 257; Chris Project v Hutt EATS 0065/05, both in the Employment Appeal Tribunal in England).
Why state a provisional view at all? Well, it can help to focus minds, even leading to settlement. It can also indicate to the parties where the decision maker sees the case going, which can help with its future management.
Arbitration
Similar comments to those above apply here. The arbitral tribunal is a judicial body and holds subject-matter expertise. It may approach the evidence in a hands-on way, even making provisional comments. The same test of apparent bias applies to arbitral tribunals as applies in the UK courts (and the test is similar in substance across many jurisdictions, with differences of emphasis). The UK test is found in the House of Lords case of Porter v Magill [2001] UKHL 67 at para 103 (Lord Hope of Craighead): ‘The question is whether the fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased.’
Mediation
If it is possible for a judge/arbitral tribunal (who will make a biding decision on a dispute) to give a strong steer as to where (on a provisional basis) it sees the case going before proceedings are over, without compromising neutrality, the same should (in theory) apply to a mediator.
I accept that, ideally, an agreement should be reached with the mediator adopting a ‘facilitative’ role, but where that is not possible, a so-called ‘evaluative’ mediation approach can be used. In my view, an evaluative approach can take three basic forms:
(a) A subtle evaluative approach, where the mediator asks questions which could indicate that certain issues are important, thereby disclosing a preliminary view;
(b) A more direct evaluative approach, where the mediator expresses a view on the issues in dispute; and
(c) The most direct evaluative approach, where the mediator suggests possible outcomes.
I repeat: none of these approaches should be considered unless and until a ‘hands-off’ facilitative approach has been tried and has not worked. Approaches (b) and (c) should only be attempted with the express (informed) permission of all parties. Where (b) and (c) are tried, the discussions should usually take place in private with each party, followed by a break, followed by a joint session, where the comments are not repeated, but are instead allowed to (hopefully) influence the resumed discussion.
If handled carefully, the evaluative element should not deprive the mediator of their neutrality when it comes to the rest of the mediation. The prospects of success may well be higher if such a process is used.
A word on expertise here. The mediator could use (for example) legal expertise in making evaluative comments about prospects of success should the case need to be adjudicated; comments on strong and weak points for each party in this context. But, equally, the expertise used could come from life experience. I see this in employment disputes, where often the issues are not legal at all, but are about communication, personality, perception. The evaluative comments could, then, simply be about explaining how in the random workplace environment, different approaches are needed for different individuals. I consider the randomness of the workplace as part of a short article ‘Differences and Randomness: Some thoughts about mediation” published online by Carmichael Lemaire.
Similar dynamics can appear even in commercial disputes, where although there is a legal dispute, getting to that dispute might involve dealing with the communication/personality/perception problem first. In some cases, that is the main source of disagreement, and once resolved, the legal dispute can be cured with relative ease.
Early Neutral Evaluation
This is a non-binding method that involves a skilled neutral (usually a lawyer) being asked to provide an evaluation of prospects of success, and possibly recommendations on settlement. For a detailed discussion of this process, see Blake et al, The Jackson ADR Handbook, 3rd ed (2021) OUP, chapter 22.
In its usual form, the parties will jointly instruct the evaluation, with the evaluation report coming to both parties. However, there is nothing to prevent one party from (secretly) instructing such a report on its own.
The process normally involves the written submission of evidence and argument, but a hearing can be fixed. Oral evidence will not be taken.
The purpose of ENE is to get an idea of how the case might eventually be decided by a skilled neutral; after all, such a person (judge/arbitrator) is likely to have to do so if the case does not resolve consensually.
This process is not costly (in comparison to an arbitration or lawsuit), can happen early in the case and is risk-free, since it is non-binding.
In ENE, the statement of an opinion on prospects is what the process is all about. This time, the neutral is offering a concluded view (not a provisional one). The neutral in this process would not, therefore, become the neutral in the final adjudication of the dispute.
Conclusion
We form opinions all the time. Keeping them to ourselves is common, in order to maintain relationships and so as not to offend. But in a resolution process, as a neutral our opinions are valued. What we are thinking as a dispute unfolds can be sobering for the parties. There is nothing wrong with being hands-on as a resolver.
We should be brave and have faith in our ability to stay neutral, whatever we might think along the way. Where telling the parties what we think might help produce a resolution, why not do so?
Not a tightrope after all, just common sense and practicality.
Professor Derek P Auchie, November 2022