In the world of ADR, questions of impartiality most often with respect to arbitration. Insofar as an arbitrator is entrusted with picking a winner in a contested proceeding, prior relationships with the parties and their counsel warrant careful scrutiny to ensure there is no explicit or inherent bias.
Mediator impartiality, while certainly important, generally does not raise the same level of concern. Acting as a facilitator, a mediator does not have the ability to adjudicate the dispute or to declare a prevailing party. Indeed, many argue that a mediator’s prior experience with counsel is often conducive to more productive settlement discussions.
However, there are circumstances where mediator neutrality is questioned. As discussed in this recent Reuters article, a federal bankruptcy judge “has removed one of the mediators tasked with overseeing confidential settlement talks between the Boy Scouts of America and groups of sex abuse survivors who say they were abused as children by troop leaders, saying his ability to remain impartial had come into question.”
According to the report, the mediator was wearing an additional hat, having been selected by the Boy Scouts to review specific claims raised by abuse claimants as part of the Boy Scouts’ reorganization plan.” According to the court, this dual role–serving to facilitate a mediated settlement while also opining on the merits of specific claims–required that he be removed.
Additional reporting is available here.