CHAPTER 27
IMPARTIALITY V. SUBSTANTIVE NEUTRALITY:
IS THE MEDIATOR AUTHORIZED TO PROVIDE
LEGAL ADVICE?
Mercédeh Azeredo da Silveira*
I. Introduction
A sine qua non of alternative dispute resolution (ADR) is the parties’
right to self-determination, which in mediation involves the ability to
select the mediator and decide whether to agree to a settlement of all or
some of the disputed issues. Mediators, lawyers and scholars agree that
compliance with the mediator’s duty to remain impartial during and after
mediation is crucial both for the process to succeed and the parties’ rights
to be protected. By complying with the duty to remain impartial, the
mediator contributes to the betterment of the practice of mediation. As
one commentator noted, “mediator impartiality instills trust, enables the
parties to collaborate and share information with the mediator and other
parties, protects mediation agreements from subsequent challenges, and
helps prevent abuses of the process. In addition, an appearance of
impartiality promotes public confidence in the fairness of the process.”1
