What It Means To Be Neutral
January 22, 2009
[An astronaut training in the Neutral Buoyancy Laboratory at the NASA Johnson Space Center]
I recently read an excellent commentary in the New Jersey Law Journal (195 N.J.L.J. 95, January 12, 2009, page 19) by retired New Jersey Superior Court Judge Harvey Weissbard entitled “The Myth of Judicial Neutrality.” Available online by subscription only, it\’s worth digging out your old hard copy if you missed this when it first appeared. In Judge Weissbard\’s view:
“The notion that a judge is neutral is one of many legal fictions. The concept presumes that the judge is a tabula rasa, a clean slate.” Instead, Judge Weissbard suggests, “every judge is a product of life experiences, which result in an indelible imprint we may call the judge\’s personal philosophy…We all know that a lifetime of practice in a particular area cannot be shrugged off when the robe is put on. And personal world views, derived from family experience or religious indoctrination, are no less likely to influence the judge.”
Judge Weissbard\’s central point is that judicial neutrality exists only as the result of a conscious struggle by judges to recognize and subordinate their personal values and beliefs to the objectivity that all litigants are promised.
So, too, is the neutrality of the non-judicial “neutral” in arbitration, mediation and other forms of alternative dispute resolution. There is no denying the “personal philosophy” one acquires through a lifetime of professional practice, business and personal relationships. In the course of a friendly conversation or barroom debate, that “personal philosophy” would likely show itself rather clearly. But like a judge, the ADR neutral must face what Judge Weissbad calls “the proverbial elephant in the room” and handle each case fairly and objectively.
Unlike a sitting judge, the ADR professional\’s “neutrality” as perceived by the parties is subject to a higher test in the form of the opinion of the marketplace. Although judicial forum shopping can and does occur to a limited extent, ADR neutrals are subject to immediate and lasting negative consequences if any party believes the neutral is “biased.” Parties and their counsel will simply vote with their feet.
This is the reason why “subject matter expertise” can coexist with “neutrality” on the ADR professional\’s resume. Very few neutrals have had a legal practice that was evenly divided among the representation of parties on all sides of the disputes in which they now claim to have subject matter expertise. In selecting an ADR professional, parties can attempt to figure out whether a candidate\’s legal experience potentially predisposes him or her to that party\’s point of view (i.e., a neutral with a shortsighted business plan), or they can select someone who has a reputation for being fair, open-minded and neutral.