Mediation Ethics

Cases and Commentaries

Ellen Waldman

• Publisher: Jossey-Bass
• Year: 2011
• ISBN:
  9781118001349
• Edition: 1
• Topic: Derecho
• Subtopic: Arbitraje, negociación y mediación en el derecho

Mediation Ethics is a groundbreaking text that offers conflict resolution professionals a much-needed resource for traversing the often disorienting landscape of ethical decision making. Edited by mediation expert Ellen Waldman, the book is filled with illustrative case studies and authoritative commentaries by mediation specialists that offer insight for handling ethical challenges with clarity and deliberateness.

Waldman begins with an introductory discussion on mediation's underlying values, its regulatory codes, and emerging models of practice. Subsequent chapters treat ethical dilemmas known to vex even the most experienced practitioner: power imbalance, conflicts of interest, confidentiality, attorney misconduct, cross-cultural conflict, and more. In each chapter, Waldman analyzes the competing values at stake and introduces a challenging case, which is followed by commentaries by leading mediation scholars who discuss how they would handle the case and why. Waldman concludes each chapter with a synthesis that interprets the commentators' points of agreement and explains how different operating premises lead to different visions of what an ethical mediator should do in a given case setting.

Evaluative, facilitative, narrative, and transformative mediators are all represented. Together, the commentaries showcase the vast diversity that characterizes the field today and reveal the link between mediator philosophy, method, and process of ethical deliberation.

Commentaries by

• Harold Abramson
  
  

• Phyllis Bernard
  
  

• John Bickerman
  
  

• Melissa Brodrick
  
  

• Dorothy J. Della Noce
  
  

• Dan Dozier
  
  

• Bill Eddy
  
  

• Susan Nauss Exon
  
  

• Gregory Firestone
  
  

• Dwight Golann
  
  

• Art Hinshaw
  
  

• Jeremy Lack
  
  

• Carol B. Liebman
  
  

• Lela P. Love
  
  

• Julie Macfarlane
  
  

• Carrie Menkel-Meadow
  
  

• Bruce E. Meyerson
  
  

• Michael Moffitt
  
  

• Forrest S. Mosten
  
  

• Jacqueline
  
  

• Nolan-Haley
  
  

• Bruce Pardy
  
  

• Charles Pou
  
  

• Mary Radford
  
  

• R. Wayne Thorpe
  
  

• John Winslade
  
  

• Roger Wolf
  
  

• Susan M. Yates
  
  

Chapter One
Values, Models, and Codes

Ethical decision making requires tough, sometimes tragic, choices. Difficult cases do not force us to choose between obviously right and obviously wrong paths. Rather, deciding which path to take is difficult precisely because there are compelling reasons to go in each direction. We want mediation to yield substantively good outcomes, and we want to honor disputants' rights to choose the best outcomes for themselves. In hard cases, it may not be possible to do both. We often can't pursue one value without forfeiting another.

Mediating ethically usually entails some loss. The difficult choices that professional mediators routinely make are often similar to the wrenching choices that faced the Greek hero Ulysses on his odyssey from Troy back home to Ithaca. At one point in the long journey, Ulysses was forced to steer his ship through a narrow strait of sea bordered on each side by ferocious monsters. On one side lurked Charybdis, whose yawning jaws sucked in and spewed out water three times a day, creating a whirlpool that destroyed any ship unlucky enough to drift too near. On the other side hovered Scylla, a six-headed beast with three rows of teeth in every mouth. No ship could pass within Scylla's reach without losing men to the monster's predations.

Ulysses' men were loyal soldiers and sailors, and he wanted to save them all, but he knew his whole ship would go down if he veered too close to Charybdis. However, sailing within Scylla's reach would mean the death of six oarsmen. With a heavy heart, Ulysses told his crew to row hard and give Charybdis's currents a wide berth. He stayed silent about Scylla for she was “a threat for which there was no remedy.” Ulysses' men were easy targets for Scylla, who snatched the strongest and bravest among them. Ulysses' anguish is clear as he describes the sight: “When I turned to watch the swift ship and crew, already I could see their hands and feet, as Scylla carried them high overhead. They cried out and screamed, calling me by name one final time, their hearts in agony…. Of all things my eyes have witnessed in my journeying on pathways of the sea, the sight of them was the most piteous I've ever seen”¹

Fortunately for us, mediation rarely poses such difficult matters of life and death. Still, the lesson from the Odyssey is clear: Ulysses could not save his ship without ethical compromise. Optimally the captain of a ship is truthful with his crew and safeguards the safety of every sailor. Ulysses deceived his men about the true dangers they faced and sacrificed six of his crew. But doing the right thing almost never involves following one mandate unflinchingly. When we consider the dire choices Ulysses faced, can we say this captain acted unethically? He saved the vast majority of those on board—all who could be saved. Where does truth rate when brute honesty threatens to fatally immobilize the entire ship? And how does one protect sailors' safety when the only choice is how many will die?

On a less stark scale, mediation ethics poses similar questions and teaches similar lessons. This chapter continues to weave the lesson of Ulysses into a discussion of the underlying values of the mediation field and their articulation in formal ethics codes. It highlights the inconsistencies that exist among and within various code sections and suggests that those inconsistencies reflect tensions among mediation's underlying values: disputant autonomy, substantive fairness, and procedural fairness.² Ideally mediators would maximally advance each of these principles in every intervention. Often this is not possible, and mediators have to decide for themselves how to prioritize and weigh these values when they push in competing directions. Mediator philosophy and the models that emerge from this philosophy play a significant role in how these balancing acts occur.

A Base of Underlying Values

In the following chapters, you will hear from commentators with diverse approaches and philosophies. You may be surprised at the range of responses, but all of them pay deliberate attention to three underlying values that shape their understanding of what is at stake and what is ethically required in any given case:

• Disputant autonomy: A disputant's right to make choices based on personal beliefs and values, free of coercion and constraint
• Procedural fairness: The fairness of the process used to reach the mediated result
• Substantive fairness or a good-enough outcome: The acceptability of the mediated result

In cases that require difficult ethical decision making, these three values will likely be in tension. When mediators confront such cases, they need to reflect on whether any one of these values trumps the others or whether it is appropriate to compromise one or more of these values in the face of more compelling mandates. However, before a discussion of how the tension between these underlying values will influence a mediator's ethical decision making, I explore and define each of these values.

Disputant Autonomy

“You're not the boss of me.” Any adult who has tried to issue an order to a child has probably heard that rebuff. The child is asserting her autonomy in the baldest way possible.

Most simply, autonomy, frequently referred to as self-determination in mediation codes and texts, means self-rule. Mediation strives to vest maximal control and choice with the disputant—not with the mediator, the state, or another third party. Unlike litigation, in which lawyers frame disputes and judges decide them, mediation assumes that disputants should retain control over how their conflicts are presented, discussed, and resolved. In litigation, fairness is discovered by looking to existing law. In mediation, disputants are urged to look to their own personal norms of fairness. Legal rules, social conventions, and other standards that might interfere with disputants' efforts to construct self-determining agreements are supposed to take a backseat.

Autonomous decisions express who we are—our preferences, desires, and priorities. They bear the imprint of our personality as it has developed over time. Determining whether decision making in mediation is truly autonomous requires a close look at internal and external conditions that threaten to influence or subvert our exercise of free will.

Internal threats inhere in the frailty of a disputant's mental or physical condition. If autonomous decision making reflects long-term values and an established pattern of belief and behavior, then illness, grief, or blinding rage may lead to decisions that subvert the values of a calmer, healthier self.

Situational threats arise from the dire, sometimes coercive, circumstances in which disputants find themselves. If you agree to hand me all your money because I put a gun to your head, can we say that you acted autonomously? If you haven't eaten in four days and agree to sign over the deed to your house in exchange for the rosemary-infused walnut baguette I'm waving under your nose, is that decision a true expression of free will? And if you agree to accept one thousand dollars from me for the broken elbow you suffered when I rear-ended you, ignorant that you could receive ten thousand dollars in court, how autonomous was your decision to settle?

Procedural Fairness

Procedural fairness examines the fairness of methods. When children are fighting in a nursery, a parent or caregiver may decide to handle all disputes about food by adopting a default procedural rule. That is, when, say, a cupcake is to be divided in half, one child gets to cut it and the other gets to choose the first piece. The adult has chosen not to dictate the size of the portions or who gets what. She is staying out of the substantive side of the dispute. Rather, she has decided to institute a procedure that encourages fair play in the division of limited sweets. The adult has made a decision, based on years of experience with children, that this rule, although imperfect, more likely than not creates fair results.

Long experience has taught mediation professionals that procedures such as preserving confidentiality and avoiding significant professional or personal relationships with clients facilitate settlements that are fairer and more satisfying to the disputants. In addition, research reveals that disputants are more likely to feel that they have been treated fairly in a dispute resolution process if they are given an opportunity to tell their story and feel listened to by a neutral and respectful third party. If disputants are treated with respect and dignity, they are likely to believe that the outcome reached in such a process is fair, even if actual terms of the agreement go against them.

Substantive Fairness

Substantive fairness treats the fairness of result. Consider a tug-of-war between two children over their favorite truck. The children are grasping opposite ends of the plastic vehicle, and one of them yells, “I had it first!” When you haven't seen what actually led up to this moment and both children are screaming like banshees, how do you arrive at a substantively fair result?

How you answer depends on your values. For some parents, given the uncertainty of what happened, a fair result would need to teach the value of peaceable coexistence. This might mean taking the truck away from both children. Other parents might surmise that the child who said she had it first did indeed have it first and decide that possession is nine-tenths of the law. Or maybe the parents would decide that because one child has had the truck for the past hour, it would be more important for her to learn a lesson about sharing. Are any of these conclusions right or wrong? In each case, the decision is based on your belief system.

What informs our substantive values? When working with children, we may be influenced by the way we were raised, institutional rules, or even the theories of our favorite child psychologist. When we mediate, we don't sit in a room with the parties isolated from the outside world; each of us comes into the room with our values in tow.

Most people would agree that people should receive their just deserts. But determining what people deserve will depend on the particular theory of justice one adopts. Should resources be divided equally, according to need, according to economic efficiency, or by some other criterion? If one hundred people need a new liver and only one liver becomes available in the next week, what does fairness require? Should the liver go to the sickest of the one hundred, the one most likely to benefit (who would definitely not be the sickest), or the individual who has the most dependents or contributes the most to society? And if contribution to society counts as a criterion, how should contribution be measured?

For some, formal law—judicial opinions, statutes, and consti-tutions—embodies important notions of justice. Legal rules that prohibit discrimination, protect consumers from dangerous manufacturing practices, and shift costs from injured victims to negligent actors are thought to capture important social judgments about the ways in which we should interact with one another. For this reason, many feel that legal rules have a role to play in mediation, functioning as placeholders for larger notions of equity and fair play. For others, formal law and justice diverge sharply. This view sees the law less as a reflection of our collective social conscience and more as a rigid set of rules that may do more harm than good. Think of the Dred Scott v. Sandford case of 1857, which ruled that African Americans who were imported to the United States and held as slaves were not citizens and therefore were not ...