Therapeutic Jurisprudence: Providing Some Answers to the Neutrality Dilemma in Court-Connected Mediation

Abstract

Neutrality as an attribute of the practice of mediation has been criticised in the mediation literature. Key theorists maintain that mediator neutrality is a myth that hides the reality of the impact of the mediator on both the content and the process of mediation. Internationally, new models of mediation have been articulated that are therapeutic in nature, highly value relationships and include a multidiscipline approach to understanding conflict and emotion. These new models reject the concept of the neutral mediator. However, courts and governments rely upon neutrality as a "legitimising framework" for the wide adoption of mediation as an alternative to litigation. In this paper we discuss the paradigm of therapeutic jurisprudence and its links with new models of mediation, such as the transformative and narrative models. We postulate that the discourse of therapeutic jurisprudence can convince courts and governments to adopt models of mediation that eschew the attribute of neutrality.