12th Al Jazeera Forum: Session 4 - Changing Alliances in the Region

10/16 An Analysis of Qatar’s Mediation Law No. 20 of 2021, Mediator Impartiality: Using the Firestone Grid as an Analytical Tool

Mediator impartiality, one of the core values of mediation, gets little specific attention in the Qatar Mediation Law. Instead, the Qatar Mediation law mentions impartiality or independence in very general terms. This oversight will require Qatari leaders in the mediation field to supplement the law with rules and a code of ethics that defines mediator impartiality in a clear and culturally sensitive way.  Article 7 governing the register of mediators may contemplate this approach when it provides that the Council will "define[e] the conditions, controls, and procedures of [mediator] registration." 

Conduct that makes a party believe that the mediator has lost his or her impartiality is the most frequently cited reason for filing a complaint against a mediator in the U.S. states of Virginia and Maine. It appears as the second most frequently raised allegation in Florida, Georgia, and Minnesota. 

The Firestone Grid

Mediator impartiality fits generally into four categories: (1) conflicts of interest, (2) conduct bias, (3) bias in favor of a specific outcome, and (4) lapses of impartiality that undermine party self-determination.

Greg Firestone, a Florida mediator, spoke about mediator impartiality at the October 2003 conference of the Association for Conflict Resolution. He suggested that the field think about these issues along two dimensions that create four quadrants on a grid. See the grid set out at the end of this post. On one side of the grid are the terms “parties” and “outcome.” On the other side of the grid are the terms “relationship” and “conduct."  The resulting four quadrants are the following: “relationship-parties,” “conduct-parties,” “relationship-outcome,” “conduct-outcome.”

Quadrant 1: Impartiality in the Mediator’s Relationships with the Parties

The mediator’s impartiality towards the parties is often discussed in terms of conflicts of interests. Firestone suggests that parties should consider the following issues when choosing a mediator. A party should learn if the mediator has any current or prior relationships with the other parties to the mediation or their counsel. Has the mediator represented a party in a legal matter previously? Has she provided one of the lawyers therapeutic counseling? 

Does she play golf with one of the lawyers? Does the mediator attend the same church, temple, or mosque as one of the parties? Do their children play on the same football team? Does the mediator get most of his or her business from one company or firm related to one of the parties? Can she remain impartial to the party who is not the repeat player in the referral system? 

Mediators should error on the side of over-disclosure of conflicts of interest or potential conflicts of interest. They should check for conflicts with the same care imposed on lawyers by legal ethics rules. Mediators must also avoid creating any conflicts of interest during the course of the mediation – for instance, by buying stock in the company owned by one of the parties. Finally, mediators should avoid creating an appearance of impropriety by representing parties in the future in the same or similar matter.

The Qatar Mediation Law attempts to address a mediator's relationships with the parties, but with no specificity.  Article 5(4), governing the qualifications of registered mediators, states that the mediator (notably referred to as "he") "shall be known for integrity, impartiality and experience." Article 11 requires a mediator to withdraw from a mediation if "any issue that affects [the mediator's] impartiality or independence arises." "Independence" could refer to independence from either party. 

Article 9 of the Qatar Mediation Law provides that the mediator "may not be a member of an arbitral or judicial panel . . . regarding the same dispute or part thereof." Thus, the neutral cannot wear two hats in relation to the same disputing parties.


Article 14 says that a mediator "may not be held accountable for his exercise of mediation tasks unless his exercise thereof was with bad faith, collusion, or gross negligence." Thus, a mediator could not engage in collusion, which, by its very nature, is bias in favor of one party.

Quadrant 2: Neutrality of the Mediator’s Conduct Toward the Parties

Next, Firestone urges mediation parties to consider whether the mediator can maintain, through his or her conduct, neutrality towards the parties. Will the mediator become frustrated, disrespectful, or heavy-handed if he or she believes a party or his or her client is uncooperative? Does the mediator hold any racial or cultural biases? Can he work with people that express racial bias? Does she think in traditional ways that may impose gender biases or reinforce gender-role expectations in the mediation? 

Does anger make the mediator uncomfortable in a way that he may cut off a party’s expression of it? Does crying make the mediator uncomfortable in a way that he may suppress the expression of sadness, fear, vulnerability, regret, and other emotions expressed in this way or other ways? Can she work with borderlines, narcissists, sociopaths, and other high conflict personalities without those parties pushing her buttons or manipulating her?

Does she accept referral fees from lawyers who regularly use her in mediation, therefore consciously or unconsciously creating a bias in favor of the referring attorneys and their clients? Is one party paying the full cost of the mediation so that the mediator may end up showing bias in favor of that party? Is the party a repeat player? Can the mediator remain even-handed knowing that she may be dependent on one party for her next referral?

Article 21 of the Qatar Mediation Law is the only article that addresses potential bias in favor of or against a party.  It governs fees and provides: "[F]ees shall be determined and the method of payment thereof by mutual consent between the parties. . . . In the event of disagreement to determine the fees of the mediator, the court shall estimate them, taking into account the effort made by the mediator, according to the petition submitted by the mediator or either of the parties."  Accordingly, even under this article, bias tied to fee payment could occur. 

Quadrant 3: Impartiality in the Mediator’s Relationship to the Outcome.

In an ideal setting, a mediator will defer to the high-quality decision making of the parties to settle (or not) and on what terms. Firestone suggests that parties, however, should consider the following situations because they change a mediator’s relationship to the outcome of the mediation. 

Does the mediator brag about a high settlement rate? Does the court-connected program director refer cases to mediators with high settlement rates? Should a party, therefore, be concerned that the mediator views the case as the next notch on his belt? Will he work hard for his settlement rate even if it requires coercive interventions that disfavor one party? 

Does he have a vested interest in the outcome because his fee is based on a percentage of the agreed settlement? Does she unduly prolong the mediation session to earn a larger hourly fee? Does he act in a way to ensure future referrals from the repeat player?

Does she believe that all human rights-related mediations must result in an agreement consistent with UN guidelines? Can he mediate with impartiality as to the outcome in an air pollution case if his son suffers from severe asthma? Can she mediate with impartiality an age discrimination case if she believes people should retire at age 65?

The Qatar Mediation Law addresses a mediator's relationship to the outcome in two articles, and then very generally.  Article 11, quoted above, requires the mediator to withdraw if an issue arises putting the mediator's "independence" into question.  "Independence" could refer to independence from any particular outcome. 

Article 14 says that a mediator "may not be held accountable for his exercise of mediation tasks unless his exercise thereof was with bad faith, collusion, or gross negligence." Typically, bad faith in mediation refers to the negotiating behavior of the parties. One party has set an unreasonably high demand, or has made a low-ball counter, or refuses to negotiate in an objectively meaningful way. One legal dictionary defines bad faith as: "dishonesty or fraud in a transaction. Depending on the exact setting, bad faith may mean a dishonest belief or purpose, untrustworthy performance of duties, neglect of fair dealing standards, or a fraudulent intent." Thus, the Qatar Mediation Law, under this definition, would limit relationships to the outcome that arise from dishonesty or fraud on the part of the mediator.

Quadrant 4: Neutrality of the Mediator’s Conduct Towards the Outcome.

Firestone also suggests parties should consider whether the prospective mediator can maintain neutral conduct towards the outcome. This post interprets that concern as conduct that undermines party-self determination intentionally or unintentionally. I discussed party self-determination over the substantive outcome here and here. 

Conduct towards the outcome may reflect a mediator’s belief that he knows more than the parties about the law, their dispute, or other factors, and so he should play a role in its substantive resolution. Conduct towards the outcome may also reflect a lack of mediation skill or an over-reliance on the skills the mediator has developed in his profession-of-origin. For instance, does the mediator use coercion, intimidation, or other heavy-handed tactics? Does she fall back on her lawyerly problem-solving skills of giving legal advice because she lacks the skills to adopt a less coercive approach? Does he or she truly respect party-self determination? Does the mediator engage in interventions or processes inconsistent with the definition of mediation? Does she add terms to the settlement agreement on which the parties have not agreed?

Article 9 of the Qatar Mediation Law provides that the mediator "may not be a member of an arbitral or judicial panel or express his opinions or testimony to either of them, regarding the same dispute or part thereof."  Thus, a neutral in an arbitral or litigation process cannot serve as a mediator in the same case.  This limitation does help keep a mediator in a facilitative role, with less concern or opinion about the substantive outcome.  

The second clause of this article is a bit confusing.  I think it limits the ability of a mediator to express any opinions or testimony in a related arbitration or litigation.  Again, this would help keep the mediator in a facilitative role.  It also has the added benefit of keeping a party in a failed mediation from calling the mediator as a witness in a subsequent arbitration or court case.  But, it also would preclude hybrid processes known as med-arb or arb-med by the same neutral.  Some people in the field would suggest that that's a good thing, because those hybrid processes invite the mediator to become much more embroiled in the substantive outcome of the dispute.

Articles 4 and 30(6) of the Qatar Mediation Law, which I discuss in greater detail in earlier posts here and here, allow the mediator to suggest solutions and make proposals to resolve the dispute.  If the mediator proposal process is not handled with skill, it can undermine party self-determination over the substantive outcome. 

Here is the Firestone grid, with my updates and interpretation.

Next up?  The articles of the Qatar Mediation Law governing confidentiality in mediation.