Mediation Ethics: From Theory to Practice

Online Panel Discussion with

Professor Nadja Alexander, Assistant Professor Dorcas Quek Anderson and Professor Lisa Toohey

Tuesday 12 October 2021
5:00pm – 6:00pm

Register here to attend on Zoom.

Everyone is welcome.

In this Twilight Webinar, a panel of three international experts will discuss Rachael Field and Jonathan Crowe’s recent book, Mediation Ethics: From Theory to Practice (Edward Elgar, 2020).

Traditional views of mediation ethics focus on mediator neutrality or impartiality. However, Field and Crowe contend these notions are unhelpful and unrealistic when applied to mediation practice. Instead, they propose a new ethical paradigm centred on party self-determination.

The panel will reflect critically on Field and Crowe’s book and discuss the implications of their new paradigm for the future of dispute resolution.  

Jonathan Crowe, Professor of Law, Bond University

Robert Angyal has posted an interesting response to Rachael Field’s earlier post about the National ADR Principles. Unfortunately, his post contains several conceptual confusions. This reply unpacks some of them.

First, Angyal asks ‘what is meant by “ADR”?’ Now, everyone knows that ‘ADR’ means alternative or appropriate dispute resolution, referring to a range of dispute resolution options that offer alternatives to the courtroom.

For Angyal, apparently, ‘ADR means going to court’. This must cause a great deal of confusion, because nobody else uses the term that way. It seems that Angyal subscribes to what is sometimes called the ‘Humpty Dumpty Theory of Language’:

‘When I use a word,’ Humpty Dumpty said, in rather a scornful tone, ‘it means just what I choose it to mean – neither more nor less.’

Next, Angyal raises a very valid and important query. When we draft standards or principles for ADR or mediation, are we engaged in a descriptive or normative enterprise? Are we trying to describe ADR as it is or as it ought to be?

The way Angyal frames the question seems to assume a binary answer. That is, our objective must be either descriptive or normative, but not both. However, this is too simplistic. ADR and mediation are functional concepts – they describe human practices with a specific purpose or goal.

As I have argued in detail elsewhere, functional concepts are best described using what is sometimes called a ‘function+’ theory – that is, a theory that combines their common descriptive characteristics with their normative aim.

The answer to Angyal’s query, then, is that any adequate account of ADR or mediation must consider both its descriptive and normative dimensions. However, Angyal is sceptical about the very possibility of a normative analysis.

Angyal assumes that any normative analysis of ADR or mediation must be based on ‘moral norms’. He then challenges this, saying:

First, who laid down these moral norms, and by what authority did they do so? Second, and equally fundamental, why should we assess mediation by moral norms at all?

A preliminary issue arises here. Why does Angyal assume that the normative point of ADR or mediation must be based on ‘moral norms’? Human practices and institutions typically have some internal point or goal, but this objective need not necessarily be an overtly moral one.

In any event, even if we accept Angyal’s assumption, his two questions are odd. In relation to the first question: why assume that if moral norms exist, they must be ‘laid down’ by someone?

If two physicists are arguing about the existence of black holes, it would be weird for one of them to ask the other, ‘Who created these black holes, and by what authority did they do so?’ The question is whether black holes (or moral norms) exist, not who created them.

Angyal’s second question has a straightforward answer. The reason we should assess ADR or mediation by moral norms is that morality, by its very nature, is the fundamental evaluative standard we use to assess human actions and practices.

However, Angyal doubts this. He claims:

We don’t normally assess the practice of civil dispute resolution by moral norms; no, we assess it by criteria such as efficiency, cost, access, speed, compliance with the rules of natural justice, and so on. Why should mediation be different?

Angyal seems to accept here that we assess ADR or mediation by reference to normative criteria internal to the practice. However, he denies these criteria are moral ones. This raises the question: where does the normative weight of these criteria come from?

It seems plausible that ‘efficiency, cost, access, speed [and] natural justice’ are morally valuable – if not in themselves, then because they advance some deeper objective. However, Angyal seems to think they are morally inert. If so, why do we care about them?

Angyal then turns to the issue of whether fairness is relevant to mediation. He begins by contending that the question, ‘is mediation fair?’, is fundamentally ‘unanswerable’, because ‘the parties will disagree about what’s fair’.

Obviously, though, the fact that people disagree about a question does not mean it is unanswerable. If two physicists disagree about the existence of black holes, this does not mean there is no fact of the matter about whether they exist.

Angyal then claims that ‘parties to a mediation aren’t participating in the mediation because they think it’s a fair process and/or one that will lead to a fair outcome’. He calls this an ‘empirical observation’, but as far as I know he has not conducted any empirical research. He is just relying on his anecdotal impressions from practice.

Angyal argues that ‘fairness is not a concept that’s relevant in mediation’ because parties are driven by considerations of cost and, in particular, the desire to avoid litigation. This leads them to settle even where this may not be objectively fair.

Angyal’s response to this is to ‘abandon questions about fairness in mediation as irrelevant’. However, this seems like a cop out. Suppose a bully is beating people up every day in the playground. He is far stronger than any of the other children.

The children who are beaten up every day might well think ‘fairness is not a concept that’s relevant’ in the playground. If someone says about the bully, ‘that’s not fair!’, they might cynically reply that ‘fairness doesn’t enter the picture’.

Does this mean we should all just give up on changing things and let the bully have his way? Of course not. We should insist on the relevance of fairness, even if it means radically reimagining the way things currently operate.

Angyal’s perspective, in the end, suffers from a lack of imagination. It may be true that fairness does not play a guiding role in many mediations. However, this does not mean it should be abandoned as one of mediation’s ethical goals.  

The following review of Mediation Ethics: From Theory to Practice is written by Paul Kirkwood, a Commercial Mediator and Litigation Solicitor in Scotland. It originally appeared at https://paulkirkwoodmediator.co.uk/2020/11/09/a-wake-up-call-for-mediation/.

Mediation Ethics: From Theory to Practice by Rachael Field and Jonathan Crowe, is, despite its low-key title, a refreshing, challenging and for mediation, controversial book – it deserves your attention.

Self-Determination, Informed Consent and Professionalism are the Primary Principles which should underpin Mediation in the Modern Age. In this new Mediation Ethic – Neutrality and Impartiality need to take a back seat. Is this a moment of truth for Mediation?

The fundamental premise of the book is that the time-honoured sacred cows and principles thought to underpin mediation – Neutrality and Impartiality – need to be relegated to being tools (or potential mediation techniques) in the mediator’s kit, rather than seen as foundational principles. Instead mediators should embrace the real foundational principle of mediation – Relational Self-Determination armoured by Informed (legal?) Consent and a Professionalism that should include a ‘fiduciary’ duty to all parties.

In support of this premise the authors propose a new ‘contextually driven’ paradigm of mediation ethics that is not rule-based, but is driven by the context of the situation in which a decision about how to intervene by a mediator, must be made. ‘As contextual ethical approaches do not prescribe a specific path to resolving a dilemma, they require competent, discretionary, professional judgements that take account of the circumstances of individual cases and respond to them reflectively and relationally’ (Page 213 and see footnote 5).

This idea of contextual ethics (or ethics derived from practice) is compared to the ‘rule-based’ or ‘regulatory’ approach to ethics taken in the legal profession, which in the context of mediation is regarded as being ‘too fixed’ and ‘limiting’ or ‘an impediment and a barrier’ to the creativity necessary for mediators in fluid fast moving circumstances. Additionally, the authors reflect on the hierarchical, formalistic and coercive nature of regulatory systems. The authors in  anticipating a response from the wider profession  to what might be seen as an almost ‘Proudhonian’ proposition (anything goes),  suggest that they support neither a rule-based/regulatory approach, nor a strictly contextual (or practice based) approach, ‘Rather, a guided model that sits between these two extremes is most appropriate because it provides a principled framework that offers practical guidance for mediation training and practice’ (Page 175).

So far so good, but I may have put the cart before the horse. Why are the authors dropping neutrality and impartiality as foundational principles when these concepts are fundamental to the way in which so many mediators perceive themselves and their role in mediation?

This book undertakes a thorough review of the concepts of neutrality and impartiality in mediation and how they came to be imported there from law and legal practice, and notes how they have been used as a means of justifying the practice or profession of mediation as being something that is equally as good as litigation or arbitration as a means of dispute resolution. The authors posit that the importation was not necessary because (1) it is the principle of self-determination that sets mediation apart from these other forms of dispute resolution and (2) that principle is what makes mediation ‘good’ and ‘fair’. It’s not about the imposition of a decision on parties by a third-party – parties self-determine their own outcome with the help of an engaged, active and interventionist mediator.

In any event the authors argue, the concepts of neutrality and impartiality turn out, in the context of mediation, to be deeply flawed and actually work to actively prevent and forestall mediators being allowed to intervene in a way that would enable them to provide support to parties which would enhance party self-determination. Take for example providing parties with information (legal or about legal systems) that would assist in ensuring that they do have the ability to make a decision on the basis of informed consent. A duty of strict neutrality and a regulatory requirement not to intervene would prevent the provision of such information and ultimately mean, in an unbalanced power situation, that the mediators’ professed neutrality or impartiality would simply lead to a reinforcing of the power imbalance where one party would make an uninformed decision and only the other party would be truly self-determining. As the authors say ‘Our proposed conceptual framework for a new ethical paradigm in mediation focuses on informed consent as the primary basis for achieving party self-determination. It is informed consent, not mediator neutrality, in our view, that provides the mechanism by which authentic party self-determination is achieved’ (Page 181).

The authors argue that in their model of mediation ‘the ethical facilitation of party self-determination is the core objective of the mediator’s role’ (Page 181). In some situations, for example where the power dynamic between parties is equal, a mediator can appropriately adopt a neutral or impartial stance to achieve this – but neutrality/impartiality are not necessarily required to realise this value. Where there is a power imbalance, mediators may require to act in a way that contradicts the ethics of neutrality as it is currently understood in order to support party self-determination (Page 181).

The authors identify four core characteristics of party self-determination: (1) active and direct participation by the parties in communicating and negotiating; (2) party choice and control over the substantive norms that guide their decision-making (for example law); (3) party involvement in the creation of options for settlement (it is envisaged that mediators can play an active role in helping parties develop options); (4) party control over whether to come to an agreement, and if so the terms of that agreement.

For the authors the imperative of pursuing party self-determination provides the ethical driver for mediators’ actions and decision-making. Informed Consent and Professionalism provide additional ethical checks on the mediator’s practice (Page 183).

In this regard the authors note that for self-determination to lead to agreements that can be considered principled and fair, genuine self-determination has to be achievable in practice (page 193) – the way to ensure this is by using Informed Consent and Professionalism.

In the authors’ view, Informed Consent (which has also been borrowed from legal doctrine) can be supported by the mediator in a number of ways. For example, by the provision of information to unrepresented parties (page 197). However, they consider that there are three elements to achieving real Informed Consent: (1) maximisation of party control through the use of intake process and party preparation strategies; (2) ethical mediator activism in support of informed consent; (3) party access to legal and other external advice.

The intake process should be used by mediators to assess a party’s capacity for informed consent and to diagnose that party’s needs in achieving it – this would include assessing their ability to access necessary legal/professional advice and also their capacity to negotiate effectively. Where these capacities appear wanting, the mediator should take active steps to help ‘remedy’ the situation by pointing the party to sources of help – ‘’or making ‘warm’ (actively assisted) referrals to relevant services. In this sense, intake processes can be considered as a way to screen parties into mediation, and also into the most appropriate model of mediation for their dispute and their capacity for informed consent’’ (Page 200).

The intake process also provides space for mediators to ensure that parties maximise their own control and should centre ‘on capacity building through mediation preparation or coaching, ensuring that the parties know and understand the process and its principles, and that they have developed strategies for their participation’ (Page 201).

The authors also consider that ‘ethical mediator activism’ is a necessary part of supporting party self-determination by facilitating informed consent of individual parties, and that if necessary, this may be required in the form of information and even advice (page 204). Quoting Weckstein, the authors note, ‘if a party cannot or will not access external advice to support their informed consent’, then ‘it should not be considered improper for the mediator to serve as a source of pertinent information’ because ‘educating disputants about relevant norms and information enhances, rather than undermines, party self-determination’ (Pages 204/205).

The authors observe that under the current neutrality centred ethical paradigm, mediators have to differentiate between the provision of ‘information’ and the provision of ‘advice’ because the latter would be ‘unethical’, even if within the mediator’s technical competence. They contrast that with their proposed new ethical paradigm and note that ‘the critical ethical distinction is not whether a mediator has provided information as opposed to advice, as both information and advice can potentially ethically support party self-determination. Rather, in terms of the professional ideology articulated (subsequently) the issue is whether the information or advice is within the technical competence of the mediator, and whether it is provided as an appropriate fulfilment of the mediator’s fiduciary duty to the parties’ (Page 205). In considering this ethical duty it behoves the mediator to decide whether a party has the capacity to use the information or advice proffered in a genuinely self-determined way. If the party doesn’t have the capacity, and is likely to accept the advice as a decision, then the provision of information or advice in those circumstances would be unethical.

The final aspect of the authors’ proposed new mediation ethics ‘is an ideology of professionalism centred on technical competence and a fiduciary-like obligation to the parties (Page 207). This is necessary because ‘an explicit professional ideology is important to providing boundaries to the more interventionist and activist role envisaged for mediators in the proposed new ethical paradigm’ (Page 208).

A fiduciary duty arises (1) because of the high degree of trust placed by the parties in the mediator and the power that the mediator has in the whole process and (2) because the practice of mediation, in the context of the rule of law, constitutes a service to public welfare (Page 209).

In conclusion the authors advise that ‘The mediation community is therefore facing a moment of truth. Mediation practitioners must reconsider, and reframe, their identity and their role; furthermore, they must respond to the serious obligation that results from the authority and power inherent in their position’ (Page 210).

This is a revolutionary concept and it remains to be seen how the mediation world will react and what impact this will have on it.

Speaking for my own part, I have never considered neutrality or impartiality to be possible – these notions are idealistic, not realistic. I agree with the authors that mediation can only be fair if parties are able to self-determine on the basis of parties genuinely informed consent – and that there should be an ethical and indeed fiduciary duty, as conceptualised in this book, on mediators to ensure that parties are genuinely informed. This, by definition, requires neutrality and impartiality as foundational principles to fall by the wayside.

In my own mediation practice, I explain to parties that I am not ‘on either of their sides’, but rather that I am there to try and help both parties; that I am omni-partial (a Clokeian concept). I explain that I can do this by using the ‘tool of confidentiality’ where that is appropriate in private session, to enable full, frank and challenging conversations where information exchanged will only be disclosed with specific party permission. This is where the fiduciary duty should kick in, in a practical way – it is the obligation not to betray party trust with regard to confidential discussions and the equally important obligation to help the party who is struggling in accessing and understanding critical information to enable them to give informed consent and to be able to genuinely self-determine. To fail to act in such a way amounts to, in my opinion a dereliction of duty.

To my mind, the authors are articulating a set of principles which provide a framework for allowing and justifying the practical approach which some mediators (including myself) may already follow. These refined principles enable mediators to practice without fear of falling foul of the irreconcilable clash between the principles of neutrality and impartiality (which prevent intervention) on the one hand and the principles of self-determination, informed consent and professionalism (which require intervention) on the other.

This concept of mediation requires mediators to be activist and interventionist. Thanks to this book and its authors, it is shown to be possible to do this in an ethical way.

Most of the clients, lawyers and expert witnesses I have worked with in mediation have made it clear that they want mediators to bring their knowledge and experience of dispute resolution into the mediation and not to leave it outside. They don’t want an anaemic mediator who is ‘strictly neutral’ and who sits on their hands – they want someone who is active and where necessary interventionist – otherwise they say, ‘what are you here for – what are you adding?’.

To conclude – this book with its revolutionary new ‘codifying’ of principles provides an ethical means of escaping the convoluted necessity of adhering to neutrality/impartiality – not altogether ‘dumping them’ but quite rightly relegating them to the tools they should be. I applaud and endorse it.

Rachael Field and Jonathan Crowe

Traditional views of mediation ethics focus on mediator neutrality or impartiality. Our recent book, Mediation Ethics: From Theory to Practice, challenges this paradigm. We argue instead for a new ethical framework centred on party self-determination. This approach is supported by a focus on informed consent and an ethos of professionalism. We propose a contextual ethical method as the most suitable way of resolving ethical dilemmas in mediation practice.

Why is a new paradigm of mediation ethics needed? Our case for a new ethical paradigm is not purely theoretical. Rather, it is grounded in the realities and demands of mediation practice. We contend that a traditional ethic of neutrality or impartiality is not only theoretically unsound, but also unrealistic, because it does not help mediators understand or negotiate common ethical dilemmas.

Consider, for example, the following case studies:

Tuan and Oanh: Tuan is a sixty-five year old man living in an assisted care facility. He suffers from early onset dementia. He is in dispute with his thirty-eight year old daughter, Oanh, about the sale of the family home. Tuan often appears confused and struggles to articulate his concerns. He sometimes goes off on unrelated tangents and seems to forget why he is there. Oanh, who is a lawyer, presents her case articulately and persuasively, including referring to the legal position.

Maha and Tony: Maha runs a small furniture upholstery business from his home. Tony placed a substantial order with him for upholstery for a boat. However, when the order was delivered, Tony refused to pay the agreed price, citing minor flaws in the work. Tony is represented by his lawyer, Phil, who refuses to budge from their initial lowball offer. Maha is a recent immigrant who speaks little English. He appears intimidated and overwhelmed by the process. The mediator is concerned he will accept the offer on the table simply to end the dispute.

Josh and Lauren: Josh and Lauren have recently separated after an eight-year marriage. They have two young children and are in dispute over parenting issues. Josh is very assertive and prone to long, aggrieved speeches. Lauren barely speaks. When she does speak, Josh often talks over her, even though the mediator reminds him not to do so. Lauren seems afraid to assert herself in Josh’s presence. The mediator suspects there is a history of domestic violence, although neither party has disclosed this.

These three scenarios all pose challenges that are far from uncommon in mediation practice. Each of them involves some kind of power imbalance between the parties. In the first case, Tuan’s ability to participate in the mediation is affected by his age and health, while Oanh is well equipped to articulate her interests by virtue of her legal training.

In the second case, there are cultural and linguistic issues to be addressed in ensuring that Maha can engage fully in the process, while Tony’s legal representation poses the challenge of avoiding overly positional negotiations.

In the third case, the dynamics of the mediation may need to be carefully managed to safeguard Lauren’s safety, as well as to enable her to appropriately articulate and assert her interests and those of her children.

There is a range of tools available to mediators in confronting these kinds of challenges. These might involve helping the parties obtain support or advice from medical practitioners, social workers, cultural support workers, interpreters or legal professionals. They might also involve techniques such as active listening, curious questioning, agenda setting, reframing and separate sessions.

However, exhorting the mediator to be neutral or impartial tells them little about when and how these tools and techniques should be deployed; indeed, it may be at odds with the demands of best practice. A mediator who actively manages the process to ensure that both parties have the chance to articulate their needs and interests cannot truly be described as neutral, in the sense of being detached and disinterested in the dispute and its outcome.

Nor does it help to insist that the mediator must be impartial, in the sense of being even-handed and objective. Rather, what is required for mediators to address these kinds of scenarios is active and targeted intervention in the process that takes account of the distinctive needs and positions of the parties. The ethical role of the mediator is to advance party self-determination by managing the process in a professionally appropriate way. This may or may not involve being neutral or impartial.

In arguing for a new paradigm of mediation ethics in which neutrality or impartiality is no longer central, we are not suggesting that mediators should act unfairly or in a biased fashion. Rather, our position is that party self-determination requires an ethic of responsiveness to the parties’ needs and interests that may involve both neutral and non-neutral (or impartial and non-impartial) actions and interventions.

As the analysis in our book further explains, if acting in a neutral or impartial fashion does not result in the support of party self-determination, then, ethically, the mediator should not be neutral or impartial. The requirement of neutrality or impartiality is untenable in such circumstances.

This does not mean that the value of neutral and impartial conduct on the part of the mediator is jettisoned altogether. However, in the new ethical paradigm we propose, neutrality and impartiality are simply approaches that may be harnessed as part of a mediator’s ethical decision-making about process management in support of party self-determination. Relational self-determination becomes the overarching goal.

Out now!

Mediation Ethics: From Theory to Practice, the new book by long-time ADR Research Network members Rachael Field and Jonathan Crowe, has now been published by Edward Elgar.

Traditional ideas of mediator neutrality and impartiality have come under increasing attack in recent decades. There is, however, a lack of consensus on what should replace them. Mediation Ethics offers a response to this question, developing a new theory of mediation that emphasises its nature as a relational process.

The authors argue that mediation ethics should move away from the untenable notions of mediator neutrality and impartiality and towards a focus on party self-determination. They supplement this focus with a view of mediation ethics as emerging dynamically from the efforts of mediators to respond to the unique needs and interests of the parties. This new paradigm provides the basis for a picture of the mediation profession as a community with its own internal standards of excellence, as well as a more sophisticated and realistic ethical framework for mediation practice.

Academics in law, social work and psychology will appreciate the book’s nuanced account of the dynamics of mediation as a dispute resolution process. Mediation practitioners, including lawyers, social workers and counselors, will find the book a practical and helpful guide to addressing ethical dilemmas. And students of mediation will benefit from the book’s clear and up to date overview of the development and principles of mediation ethics.

Critical Acclaim

‘This book provides a thought-provoking re-examination of two of mediation’s central characteristics, neutrality and impartiality, setting out a fresh ethical framework for achieving mediation’s primary objective, namely, consensual, informed party-controlled decision-making. This book, drawing on a rich body of theory and research, will provide a valuable resource for all those interested in the theory and practice of mediation.’
– Marian Roberts, family mediator and author

‘In Mediation Ethics, Rachael Field and Jonathan Crowe deconstruct the foundation of modern mediation ethics and then reconstruct it in a creative and insightful way. They analyze the problems created by deriving mediation’s ethical framework from a commitment to neutrality and impartiality and argue instead for a focus on empowerment and self-determination. In doing so, they not only provide a much more useful approach to ethical decision making but they also point to a new way to think about the practice of mediation itself. This is an extremely useful, well reasoned, and well presented contribution to the conflict engagement field.’
– Bernie Mayer, Creighton University, US

Contents

1. Introduction: The Need for a New Paradigm of Mediation Ethics

2. The Foundational Paradigm of Contemporary Mediation

3. The Development of Mediation Ethics

4. Neutrality and Party Self-Determination

5. The Myth of Mediator Neutrality

6. The Empty Idea of Mediator Impartiality

7. Party Self-Determination and the Mediation Language Game

8. Ethics and the Mediation Profession

9. A New Conceptual Framework for Mediation Ethics

10. Four Guidelines for Ethical Mediation Practice

11. Conclusion: Towards an Appropriate Ethical Paradigm for Mediation

For more information (or to order your copy), see https://www.e-elgar.com/shop/mediation-ethics.

Last week’s post explored whether mediation could play a direct role in democratic deliberation. This would involve bypassing politicians to create consensus on social issues. This week’s post explores a more modest proposal. Could mediation help resolve policy impasses among lawmakers?

Tim Kaine, a former Governor of Virginia and Hillary Clinton’s Vice Presidential running mate, proposed this idea in a panel discussion in 2018. Kaine learned the power of mediation as a lawyer and, as Governor, would often bring in trained mediators to resolve policy disputes within government.

Kaine suggests that federal lawmakers could also benefit from mediation. Facilitative mediation aims to avoid positional bargaining and rights-based language in favour of articulating interests. This makes it more likely parties will compromise on their initial positions and reach a mutual agreement.

Mediation among lawmakers could help overcome stalemates in the legislative process. It could also reduce partisanship. Mediation involves listening to the other parties articulate their concerns in a non-adversarial way. This could help foster understanding and common ground across political divides.

However, Kaine also reflects upon why politicians may resist mediation. ‘In policy,’ he explains, ‘there is often a political motive to keep a dispute going than resolve it.’ Politicians benefit from concealing or denying common ground. They use disagreements to raise funds, energise their base and assign blame.

These factors give politicians disincentives to listen to people they don’t agree with. Kaine observes that ‘listening is the lost art in life right now’ and ‘people don’t feel like anybody listens to them.’ Mediators, by contrast, ‘are trained listeners.’ They ‘are trained to find commonalities that people can’t see.’

A further benefit of mediation in politics, as Robert Benjamin notes, could be to encourage a more constructive approach to conflict among the general public. Benjamin argues that ‘[l]eadership style … directly influences the willingness or hesitancy of people to consider negotiation or mediation … in daily life.’

If political leadership values deliberation, inclusion and consensus, then we might expect to see these values throughout the community. On the other hand, if politicians prioritise power over compromise and depict all disputes as zero-sum games, then mediation may be devalued across society as a whole.

Mediation is commonly conceived as a mechanism for resolving disputes that would otherwise be settled through the courts. However, could mediation potentially be used for reaching agreement on other social issues—including those that would be decided by the executive or parliament? A recent interesting article by Richard Schmitt in the Journal of Social Philosophy explores this possibility.

Democratic decision-making is generally associated with the electoral process. Recent discussions have also explored the prospects of deliberative democracy, where elections are supplemented or even replaced by joint deliberation among citizens. Schmitt argues that mediation represents a third possible type of decision-making mechanism that has been neglected in the literature on democratic theory and practice.

Schmitt discusses some examples of groups that rely on mediation to make collective decisions. His main example is the Society of Friends (or Quakers). The Quakers, Schmitt notes, ‘have developed techniques over several centuries which allow groups to deliberate together without the conversation degenerating into bitterness and shouting, instead reaching agreements that meet no opposition’ (233).

At a Quaker business meeting, as Schmitt describes it, members sit quietly until moved to speak. They say their piece, but do not seek to defend their perspective against others. They merely offer it for consideration by the group. Members also do not criticise the viewpoints offered by others. ‘The focus’, Schmitt observes, ‘is not on “giving reasons”’ as is so often the case in deliberative democracy (234).

Members do not raise their voices, interrupt or try to win an argument. Instead, they silently consider what they have heard. At some point, an attempt is made to articulate the consensus of the meeting. Members may suggest amendments to this formulation. At the end, if nobody objects, the consensus will be adopted, not because everyone necessarily agrees, but because ‘no one is deeply troubled by it’ (234).

It is often assumed that unanimity is not possible in democratic decisions. Majority rule is always needed. However, Schmitt argues that the example of the Quakers shows this to be false. It is possible to achieve unanimity, even if not everyone agrees on everything, if the right kind of decision-making process is followed. This also requires, of course, that participants follow shared ground rules in good faith.

The process followed by the Quakers, as Schmitt observes, has much in common with mediation. It avoids rights-based discussions or positional bargaining. Instead, it allows participants to articulate their viewpoints without interruption, then encourages them to reach an outcome everybody can live with. The aim is not for someone to win, like in  court, but for everyone to walk away with something they can accept.

One shortcoming of Schmitt’s article is that his discussion of mediation is a bit out of date. For example, he describes the mediator as a ‘professional neutral’ without acknowledging the current lively debates about whether mediator neutrality is desirable or possible (237). Nonetheless, he captures some of the key features of mediation, such as the role of ground rules and the focus on exploration and option generation, showing their potential application to group decisions.

Mediation generally involves a relatively small number of parties. However, Schmitt argues that it can be applied to larger social groups. He discusses some examples of this, such as an effort by the Centers for Disease Control to reach consensus among 110 stakeholders from organisations with different views on HIV/AIDS. The mediators divided the stakeholders into teams and guided them through a facilitative process. This was successful in producing areas of consensus across the whole group.

Schmitt raises and responds to a possible objection to mediation as a democratic process. The worry is that mediation may be undemocratic, because it involves small groups making decisions on behalf of the whole community (243). Schmitt argues this is not necessarily a problem, provided that the small groups are representative, well informed and transparent. The general public can give feedback and views to the stakeholders directly involved in the mediation.

Schmitt’s response to this challenge, in my view, overlooks another, more radical possibility. What if we think of society not as one big group, but as a collection of many, overlapping smaller groups? If these smaller groups adopted mediation as a way of seeking consensus on specific issues, then one might expect areas of consensus to emerge organically in the community as a whole. (I explore this kind of possibility in my own current work on small justice.)

Could mediation transform democracy? Does it offer a genuine alternative to the electoral process and existing forms of political deliberation? The prospect of mediated outcomes taking over political discourse may seem far fetched in the current political environment with its partisanship, bargaining and rancour. However, mediators have always been innovators and risk-takers. It seems fitting that they could also be the ones to reshape democracy as we know it.

Jonathan Crowe and Rachael Field

Mediation ethics has traditionally given a central role to the notion of mediator neutrality. The idea that mediators are ethically obliged to be neutral, however, has come under increasing attack in recent decades. Numerous scholars have argued that traditional views of mediator neutrality are unrealistic and unhelpful for mediation practice.[1] This is because they overlook the humanity of the mediator and ignore the reality of power imbalances in the mediation process. It is unrealistic for mediators to be wholly neutral, because they are human beings with their own perspectives and biases. Mediator neutrality is also unhelpful to the parties, because it robs the mediator of the ability to intervene actively in the process where needed and ensure that all parties achieve meaningful self-determination.

Some authors, such as Laurence Boulle,[2] have suggested that these criticisms can be avoided by shifting the focus from mediator neutrality to mediator impartiality. It may not be realistic, the argument goes, for mediators to be entirely neutral, but they can and should aspire to be impartial between the parties. This shift from neutrality to impartiality was taken up in the work of the National Alternative Dispute Resolution Advisory Council (NADRAC) and subsequently incorporated into the National Mediator Accreditation System (NMAS) of 2015.

We argue in a recent article, however, that this shift from neutrality to impartiality is unconvincing and lacks practical efficacy.[3] There are two main reasons, in our view, why focusing on mediator impartiality does not solve the problems confronting the traditional paradigm of mediator ethics. The first is that the distinction is too technical to make a real difference in how the mediation process is understood in practice. The distinction speaks perhaps to people who are steeped in the details of mediation terminology, but not to the ordinary party who comes to mediation for assistance with managing or resolving their dispute, seeking a transparent, fair and ethical process. Indeed, for most people, neutrality and impartiality mean the same thing, with the terms often used interchangeably.

The second problem with the distinction between neutrality and impartiality is that the notion of impartiality, as defined by authors such as Boulle, still encounters many (if not all) of the challenges that beset the traditional concept of neutrality. Boulle’s identification of impartiality with fairness, we would argue, is too simplistic. Treating parties with different and complex power dynamics between them in a way that prioritises ‘even-handedness [and] objectivity’,[4] as those terms are usually understood, will favour the more powerful party, in a way that would not be allowed by a genuinely fair process. This is because such an approach will generally entail giving the parties identical or similar treatment, even where they are differently situated or face distinct challenges. The notion of impartiality, in this respect, invites a similar critique to the more traditional idea of neutrality.

It would be possible to avoid this objection to mediator impartiality by interpreting the ideas of even-handedness and objectivity in a more creative and non-traditional way. This would involve saying that mediators can be even-handed and objective even if they treat the parties differently, provided that they do this in an ethically appropriate manner. However, this way of understanding mediator impartiality is of little assistance to mediators and parties in grasping the ethical framework, unless it is supplemented with a more detailed account of when mediator interventions are ethically appropriate. The basis for such an account, we suggest, has to come from some more fundamental ethical notion, rather than from impartiality itself. The idea of mediator impartiality is therefore empty: it either reproduces the traditional problems of mediator neutrality or offers little guidance on the mediator’s ethical role.

Merely shifting the emphasis to mediator impartiality fails to solve the dilemmas posed by the concept of neutrality. A more fundamental rethinking of mediation ethics is needed if we are to avoid the shortcomings of the traditional paradigm.  We suggest in our forthcoming book, Mediation Ethics: From Theory to Practice, that the better approach is to cease to treat mediator neutrality or impartiality as a guiding value of mediation practice, instead emphasising party self-determination. This framework recognises and legitimises the ethical choices mediators routinely make in response to information deficits or power imbalances, rather than seeking to shoehorn them into a modified version of the traditional paradigm.

[1] See, for example, Rachael Field, ‘Mediation and the Art of Power (Im)balancing’ (1996) 12 Queensland University of Technology Law Journal 26; Hilary Astor, ‘Rethinking Neutrality: A Theory to Inform Practice – Part I’ (2000) 11 Australian Dispute Resolution Journal 73; Rachael Field, ‘The Theory and Practice of Neutrality in Mediation’ (2003) 22(1) Arbitrator and Mediator 79; Bernard Mayer, Beyond Neutrality: Confronting the Crisis in Conflict Resolution (Jossey-Bass, 2004).

[2] Laurence Boulle, Mediation: Principles, Process, Practice (Butterworths, 1996) 19-21; Laurence Boulle, Mediation: Principles, Process, Practice (LexisNexis, 2^nd ed, 2005) 30-36; Laurence Boulle, Mediation: Principles, Process, Practice (LexisNexis, 3^rd ed, 2011) 71-80.

[3] Jonathan Crowe and Rachael Field, ‘The Empty Idea of Mediator Impartiality’ (2019) 29 Australasian Dispute Resolution Journal 273.

[4] Boulle, Mediation: Principles, Process, Practice (1^st ed) 19.

The literature on informal dispute resolution and family law has long recognised the influence of the shadow of the law on legal option generation and negotiations outside the courtroom. The term ‘shadow of the law’ was first coined by Robert Mnookin and Lewis Kornhauser in an influential 1979 article in the Yale Law Journal. They used the term to refer to the impact of substantive law on informal negotiations and dispute resolution processes, with particular emphasis on family law matters.[1] Even in informal dispute resolution contexts, Mnookin and Kornhauser observed, the law still provides the implicit backdrop and framework for negotiations.

Later authors have added sophistication and depth to Mnookin and Kornhauser’s analysis.[2] None of this research, however, directly answers the question of how participants in family dispute resolution in the current digital age source their information about the legal context. A recent article by Rachael Field, Lisa Toohey, Helen Partridge, Lynn McAllister and myself sets out to explore this issue through an empirical study of participants in family dispute resolution.[3] The information gathered through this research helps us to better understand the sense in which family dispute resolution may be said to take place in the shadow of the law.

The data from our study exposes the current conception of the shadow of the law as incomplete and insufficient. In particular, our results show that individuals acquire legal information of varying levels of reliability and credibility by relying on a range of formal and informal sources. Online sources are particularly influential in shaping parties’ understanding of the law, while discussions with family and friends also play an important role. Professional legal advice, by contrast, plays a relatively minor role for many participants. A significant proportion of parties do not or cannot access professional legal advice, while those who do access such advice do not necessarily regard it as the more important factor in their perceptions.

Our article therefore argues for a broader understanding of the concept of the shadow of the law and a more realistic conception of how that shadow influences the decision-making of parties in family law disputes. Family dispute resolution, we suggest, does not take place in the shadow of the positive law (the law contained in statutes, case law and other formal legal sources), so much as the shadow of the folk law (the law as depicted in informal sources such as online materials and popular media). Furthermore, there is not just one shadow of the law, reflecting the current state of the positive legal materials; rather, there are multiple shadows, depending on the parties’ socio-economic backgrounds and where they are gaining their information.

Government agencies, mediation providers and others involved in providing post-separation advice and information need to be aware of the influence that the folk law exerts on parties’ expectations. For government agencies and other advisors, there is a need to provide straightforward, accessible and digestible information about post-separation options, recognising that this information is likely to be accessed alongside a multiplicity of other sources. Mediators, likewise, need to be mindful that parties to family dispute resolution may come to the process with divergent understandings of the legal framework for their dispute. Mediators may need to reflect upon their own understandings of the law and ask how closely they might match or differ from the folk law that influences the parties.

[1] Robert Mnookin and Lewis Kornhauser, ‘Bargaining in the Shadow of the Law: The Case of Divorce’ (1979) 88 Yale Law Journal 950.

[2] See, for example, Becky Batagol and Thea Brown, Bargaining in the Shadow of the Law: The Case of Family Mediation (Federation Press, 2011); Jeremy Feigenbaum, ‘Bargaining in the Shadow of the “Law”: The Case of Same-Sex Divorce’ (2015) 20 Harvard Negotiation Law Review 245; Herbert Jacob, ‘The Elusive Shadow of the Law’ (1992) 26 Law and Society Review 565.

[3] Jonathan Crowe, Rachael Field, Lisa Toohey, Helen Partridge and Lynn McAllister, ‘Bargaining in the Shadow of the Folk Law: Expanding the Concept of the Shadow of the Law in Family Dispute Resolution’ (2018) 40 Sydney Law Review 319.

The Challenges of Elder Mediation

Part II: Problems and Solutions

D.M.

This is Part II of a two part series of posts by D.M., a current JD student at Bond University.

As mentioned in my previous blog post, there are several challenges unique to elder mediation. A significant challenge regarding capacity that elders face is an incorrect perception by the mediator or the other party of their capacity to participate in the mediation. Such perceptions are often rooted in ageism, a physical or psychological disability (such as dementia) or cognitive defects stemming from illness or distress. As a result, an elder may feel disempowered because of their dependence on their caretaker or an underlying mental health condition.

Furthermore, if the mental health issue is known to the mediator or the other party, this may create a bias regarding the elder’s capacity or the mediator may incorrectly assess the elder’s capacity, further aggravating the power disparity.[1] An addition problem is that older adults may bargain away their rights in an attempt to preserve relationships with family members who are applying pressure or coercion to obtain access to their assets. They may also be afraid of retaliation from an abuser.[2]

The role of the mediator

Mediators face special challenges in elder mediation. For example, even though ground rules are necessary in mediation, the elderly sometimes comment that they feel constrained by them. This is a complex challenge because such ground rules may also work to reduce bullying from other parties (who may include abusers). The establishment of ground rules, however, is confined to the mediation, which only yields temporary empowerment of the elderly party.[3]

Mediators may also face challenges in managing elders’ contributions. Self-determination is nourished by allowing the parties to discuss and pursue their interests, but some forms of abuse may be tough for the elderly to articulate or confront. Another issue concerns the dilemma of whether medical documentation of the elderly should be shared with the mediator. On the one hand, it may create bias concerning the elder’s capacity. On the other hand, the mediator may need this information to ensure the elder’s self-determination.

Possible solutions

Appropriate responses to these challenges will differ from case to case, but some guidelines can be suggested.  Until proven otherwise, elder adults should be deemed to have full capacity to participate in mediation. However, where capacity is in doubt, this needs to be properly established and not simply assumed. One possible way to ameliorate this challenge is to hire a medical professional to make that determination. Another possible way is for a social worker to assess the party’s capacity, as they may have more relevant expertise than the mediator.[4]

Older adults are legally presumed to be capable of making decisions about their finances. However, due to ageism or cultural norms and stereotypes, as adults get older professionals may increasingly speak to family members about the older person’s financial issues rather than speaking to the older person directly. In such cases, it has been suggested that a professional in the relevant field (in this example, an accountant or financial advisor) be consulted.[5]

Mediator training and professional development also plays a key role. Mediators who deal regularly with elder parties should seek training in identifying and responding to issues concerning capacity and mental health. This training could help avoid the cost involved with consulting medical professionals in some cases, but it will also help the mediator identify when additional expertise or support is needed.

[1] Rebekah Doley, ‘Accommodating Common Mental Health Issues in Mediation’ (2016) 27 ADRJ 84, 85-6.

[2] Joan Braun, ‘Elder Mediation: Promising Approaches and Potential Pitfalls’ (2013) 7 Elder Law Review 1, 3, 6.

[3] Alexandra Crampton, ‘Elder Mediation in Theory and Practice: Study Results From a National Caregiver Mediation Demonstration Project’ (2003) 56 Journal of Gerontological Social Work 423, 426.

[4] Ibid 434.

[5] Braun, ‘Elder Mediation’, 6.