There is a moment that experienced mediators recognize immediately.

It happens early, sometimes very early. You leave one caucus room, step into the other, and before you have even had a chance to relay a single message, counsel looks up and asks, sometimes pointedly, whether you “challenged” the other side on a particular position. It has happened to me a couple of times recently.  The implication is unmistakable. I am expected not merely to carry messages, but to press, test, and advocate, quietly and strategically, on their behalf.

That expectation is perhaps understandable. It is also, in my view, a mistake. Because the moment a mediator starts advocating for a position they have not been asked to evaluate, they stop doing the job they were retained to do, and start undermining both the negotiation and their own credibility. 

What Neutrality Actually Means (and What It Does Not)

Neutrality does not mean passivity. It does not mean silence. And it does not mean pretending that weak arguments are strong or that risk does not exist. Neutrality means something more disciplined, and far more difficult.

It means the mediator does not take ownership of a party’s position. It means the mediator does not become the voice of one side’s case in the other room. And it means the mediator does not pre-emptively evaluate positions unless invited to do so. This distinction has been foundational in mediation theory for decades. Many will remember a best-seller from the early 1980’s called Getting to Yes[1]. In that seminal  work, authors Fisher and Ury, for example, emphasized that a durable agreement comes from separating people from problems and focusing on interests rather than positional combat. That framework collapses the moment a mediator is perceived as advancing one side’s position as their own.

Once that line is crossed, the mediator ceases to be a neutral process manager and becomes, at least in perception, an informal advocate.

And perception, in mediation, is everything.

The Real Problem: Role Confusion, Not Zealous Advocacy

Much of the pressure placed on mediators to “challenge” the other side does not come from bad faith. It comes from role confusion.

Counsel are trained to advance positions, test opposing arguments, and exploit weaknesses. In mediation, those instincts do not disappear, but they no longer belong to the mediator. When counsel expect a mediator to advocate in the other room, what they are often seeking is a surrogate advocate, someone who can press their case without the relational or reputational cost of doing it themselves.

That instinct is human. It is also corrosive.

Once a mediator starts performing that function, the process quietly shifts. Parties begin negotiating with the mediator instead of with each other. Ownership of the outcome erodes. And when agreement is reached, it becomes unclear whose reasoning carried the day, or even whether the deal will hold once the pressure is gone.

Mediators are not settlement counsel. When those roles blur, the process weakens.

Relaying, Testing, and Advocating Are Not the Same Thing

I see that there is a critical difference between relaying a position, testing a position, and advocating for a position.

Relaying is mechanical and faithful. It involves carrying a message accurately, without embellishment, distortion, or ownership.

Testing is conditional. It occurs when a party asks for feedback, assessment, or reality-checking, and only then. Even in evaluative mediation, testing should be done transparently, with permission and with clear boundaries.

Advocating is something else entirely. Advocacy involves advancing a position as if it were your own, choosing which arguments to emphasize, framing them strategically, and pressing the other side to move.

That is not mediation. That is shadow lawyering.

When I was doing graduate studies in litigation and ADR in the 90’s, I did essays on Leonard Riskin’s work on mediation styles. Often referred to as The Riskin Grid,[2] he has long warned that uninvited evaluation compromises party self-determination. When mediators slip unconsciously into advocacy, they distort both the process and the legitimacy of the outcome.

In my mediation practice, that warning has aged well for me.

Why Early Advocacy Is Especially Toxic

The problem becomes acute when this pressure arises early in the mediation, before the mediator has even had the opportunity to relay messages between rooms. At that stage, the mediator has not yet fully heard the opposing narrative, tested internal consistency, assessed credibility, or identified shared interests and genuine pressure points.

To “challenge” the other side prematurely is not insight. It is guesswork. And guesswork dressed up as authority is one of the fastest ways to lose trust. Once one side believes the mediator is acting as a proxy advocate, the other side will assume the same. Or worse, assume bias. Candour evaporates. Questions are no longer heard as neutral inquiries but as cross-examination. From that moment on, every message is discounted.

Neutrality Preserves Party Ownership of the Outcome

One of the most enduring principles of mediation is party self-determination, the idea that the resolution must belong to the parties themselves. This is not an abstract value. It has practical consequences.

When a mediator advocates uninvited, they insert their own authority into the bargaining dynamic. The risk is not merely perceived bias. It is dependency. Parties begin deferring rather than deciding. Concessions are made to satisfy the mediator rather than to reflect genuine reassessment of risk or interest. That may produce movement. I think it will rarely produce a durable resolution.

Neutrality keeps responsibility. And credit where it belongs. Parties who reach agreement through their own reasoning are far more likely to honour it.

What Neutrality Looks Like in Practice

Neutrality does not mean standing back and waiting. It means listening closely, relaying messages accurately, and asking questions that clarify rather than coerce. It means identifying misalignment between stated positions and underlying interests. It means highlighting risk when asked, and doing so candidly and even-handedly.

Most importantly, it means resisting the temptation to perform. Mediation is not theatre. It is not persuasion by proxy. A mediator’s influence comes from trust, not pressure. As Deborah Kolb and Judith Williams observed in Everyday Negotiation[3], mediators who preserve neutrality retain credibility even in high-conflict environments. Those who do not quickly lose it.

The Business Cost of Being “That Mediator”

There is another reality that does not get discussed openly enough, that of the mediator’s reputation. Mediators who develop a reputation for being “pro-plaintiff,” “pro-defence,” “insurer-friendly,” or “hard on claimants” may think they are adding value. I think they are narrowing their market.

Sophisticated counsel talk. Adjusters talk. Claims managers talk. Once a mediator is perceived as leaning one way, files stop coming from the other. Neutrality is not just an ethical obligation. It is a business asset. A mediator who can be trusted not to advocate unless they are asked their opinion remains acceptable to both sides of the bar. A mediator who cannot resist the urge to push becomes a specialty product, useful only when the wind is blowing in one direction.

That is not longevity. That is short-term positioning.

Evaluation Has Its Place, But Only When Invited

None of this is an argument against evaluative mediation.

There are moments I have found, often later in the day, sometimes near impasse, when parties want my assessment. When they ask directly for risk analysis, credibility commentary, or a settlement range grounded in experience, I am always prepared to give it. From my 30+ years of experience about half plaintiff and half defence work, I cannot help but prepare like counsel, and have an opinion when asked.

When that invitation comes, a skilled mediator can offer evaluation candidly and constructively without abandoning neutrality. The key is consent.

Absent that invitation, advocacy is not helpful. It is presumptive.

Why I Say This in Every Opening

This is why I make it explicit at the outset of every mediation that I am not there to advocate for either side. I am not on anybody’s side. And I am not there to argue someone else’s case for them. I will relay messages faithfully. I will explore interests. I will ask questions. And if asked, I will give my assessment honestly.

What I will not do is prejudice my position as a neutral by becoming an advocate in someone else’s absence.

That boundary is not defensive. It is professional.

Neutrality Is the Mediator’s Currency

I am now well into the second half of a decade practicing mediation. One lesson repeats itself. The good deals that last are the ones the parties believe they reached themselves. Neutrality is not a limitation on a mediator’s effectiveness. It is the source of it.

Spend that currency carelessly, by advocating early, uninvited, or asymmetrically, and you will find yourself distrusted, ineffective, and quietly avoided.

Protect it, and you remain what the parties actually need, namely a credible, trusted, disciplined guide through a difficult negotiation.

That is not just good mediation theory. It is good mediation practice.

 

[1] Fisher, Roger, William Ury, and Bruce Patton. Getting to Yes: Negotiating Agreement Without Giving In. 3rd ed. New York: Penguin Books, 2011.

 

[2] Riskin, Leonard L. “Understanding Mediators’ Orientations, Strategies, and Techniques: A Grid for the Perplexed.” Harvard Negotiation Law Review 1 (1996): 7–51.

 

[3] Kolb, Deborah M., and Judith Williams. Everyday Negotiation: Navigating the Hidden Agendas in Bargaining. San Francisco: Jossey-Bass, 2003.