Looking for Answers to Mediation’s Neutrality Dilemma in Therapeutic Jurisprudence

The notion of neutrality has long been criticised in the mediation literature. It is often said 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. Despite these criticisms neutrality continues to be seen as central to mediation theory and to the acceptance of mediation as a legitimate, fair and just process. Internationally, new models of mediation are being developed that reject the concept of the neutral mediator. These models base their claim to fairness and legitimacy on being therapeutic in nature, valuing relationships highly, and including a multidisciplinary approach to understanding conflict and emotion. In this article we discuss the paradigm of therapeutic jurisprudence and its links with new models of mediation, such as the storytelling, transformative and narrative models. We argue that therapeutic jurisprudence can provide a legitimate foundation for mediation without reliance on the concept of neutrality.