Tag Archives: ethics

The central role of party self-determination in mediation ethics

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Written by Professors Rachael Field and Jonathan Crowe. The post is a version of a paper delivered at the 6th ADR Research Network Roundtable, 4 -5 December 2017.

RF and JC Image

The dominant paradigm of mediation ethics has traditionally given a central role to the notion of mediator neutrality. However, this focus has been criticised in recent decades for being unrealistic and overlooking the power dynamics between the parties. In our forthcoming book, Mediation Ethics: From Theory to Practice, we advocate a new paradigm of mediation ethics focused on the notion of party self-determination. Why, then, is party self-determination a suitable candidate for this role?

The justification for making party self-determination the primary ethical imperative of mediation centres on two main arguments. The first argument is that the possibility of achieving self-determination for the parties is what distinguishes mediation from other dispute resolution processes and makes it a distinct and valuable process in its own right. The second argument is that the achievement of party self-determination provides a principled foundation for the legitimacy of the mediation process. We discuss these arguments briefly below.

Mediation as a distinct process

Party self-determination is the key factor distinguishing mediation from litigation and other dispute resolution processes, because mediation provides the parties with the ultimate power to decide how to resolve their dispute. A mediator’s role is to use their expertise so as to enable and empower the parties to reach their own decision. This characteristic of mediation is special and distinct.

This point is emphasised by the fact that in litigation, arbitration, and even conciliation processes, the focus is not on enabling and empowering the parties to take control of their dispute and to reach an outcome of their own determination. Rather, the focus is on the third party decision-maker or specialist judging the merits of the parties’ cases and imposing a decision. Such adjudicative activity is generally guided by objective norms or criteria—most often centred on the law. There is limited opportunity for party self-determination in such processes.

Party self-determination in mediation is also distinctive because it is relational—grounded in connection, cooperation and collaboration. This concept of self-determination is very different from an atomistic notion of autonomy that emphasises privacy and self. An atomistic conception of self-determination arguably underpins the adversarial legal system, because each party is encouraged to advocate single-mindedly for their own interests. In mediation, by contrast, party self-determination does not exist on an individual level; rather, it is holistic and relational, encompassing the needs and interests of both parties. If only one party experiences self-determination, the process has not succeeded in its aims.

Principled and legitimate outcomes

A second argument for emphasising party self-determination is that it provides a principled foundation for the legitimacy of the process. Party self-determination can be said to lead to principled outcomes because it reflects foundational values of our legal, social and political order. These include traditional liberal values, such as consent, autonomy, respect, privacy and dignity. However, they also include relational values, such as empathy, emotional expression and interpersonal dialogue.

These values highlight the importance of party involvement and collaboration in the negotiation, creative option generation and decision-making components of mediation. In mediation, the parties can achieve a principled outcome because they are deeply and thoroughly involved in working through the issues, discussing their individual and mutual perspectives, and developing the terms of the final resolution. Party engagement also promotes the personal dignity of the parties, particularly when the result is to avoid the inevitable costs and uncertainties of litigation.

Party self-determination also promotes principled outcomes because it yields a form of real world justice. Many disputes take place in a context where the parties have different needs, priorities and values. Parties value different things, and also value things differently. This means that compromises and trade-offs are an inevitable and constructive part of the process. Compromise, then, does not mean the process is unprincipled or illegitimate. Rather, the value of compromise represents a key principle in its own right. It can lead to a more principled and legitimate result than rule-based or adversarial approaches. The notion of party self-determination recognises and embodies this important value.

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Honesty and Candour in Mediation: Are They in Short Supply?

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Mediation, like negotiation, is at its most basic a process of communication between parties in dispute. The aim in mediation is to find a mutually agreeable solution. The success of mediation might well depend on the ‘honesty’ and ‘candour’ of the parties and their representatives. The parties must be honest and open enough to find a zone of agreement.

The terms honesty and candour need to be defined. Elsewhere I have defined ‘honesty’ as a concept which concerns the accuracy of information conveyed, while ‘candour’ is a concept which goes to the heart of whether or not information is conveyed at all.

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Honesty the flower: credit Creative Commons  see below

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While it makes sense for the parties to be honest and open enough to find a mutually acceptable solution, only a fool would rush into a mediation and reveal, at the outset, their BATNAs, WATNAs, and bottom lines.

As for mediators, they are constantly handling information gleaned from the parties in dispute. Often they have to run ‘messages’ back and forth from separate sessions with the parties.

This short discussion looks at the obligations, if any, which fall upon the mediation participants and mediators to be honest and candid.

Parties and their representatives – duties owed to mediators and to each other

Agreements/Legislation

Standard form agreements to mediate and relevant legislation do not usually impose an obligation to be honest and/or candid, although they often require parties to ‘cooperate’ with each other and with the mediator to carry out tasks such as isolation of issues in dispute, exploration of options and so on. Many legislative schemes require the parties to participate in good faith. The terms ‘cooperation’ and ‘good faith’ (and ‘genuine effort’) are rarely defined in agreements to mediate or by relevant legislation but the courts have discerned some common elements (eg attendance at the mediation by someone with authority to settle). Some guidance on behaviour which is not inconsistent with good faith in mediation is also available from cases and commentaries. Good faith does not require a party to act against self-interest and it does not require a party to take ‘any step to advance the interests of the other party’.[1] Good faith does not require the parties to engage in total disclosure. There is no requirement to reveal all of one’s negotiation goals and bottom lines.

Lawyers, as agents for their clients, are also bound by the obligation to act in good faith. A lawyer cannot mislead the mediator or his or her opponent about a material fact for it is recognised that such action (or inaction, where a false statement needs to be corrected) constitutes bad faith.

Negotiation Convention

It is sometimes assumed that interest-based negotiation, which underlies the facilitative model of mediation, requires honesty and candour. Negotiators adhering to an interest-based approach might explain their positions and interests (and refrain from misleading on these matters) with the idea of finding a solution that meets each parties’ interests, but the prescription to be honest and forthcoming with information stops at positions and interests. There is no requirement under this model of negotiation to disclose one’s BATNA or bottom lines.

Rules of Professional Conduct for Lawyers

If the parties are legally represented, the level of regulation intensifies. Legal representatives are subject to the ‘law of lawyering’ including the rules of conduct of the legal profession. These rules set out obligations owed by lawyers to courts and tribunals, clients, opponents and other parties.

Lawyers cannot mislead or deceive the court on any matter. They must advise the court of any adverse legal authorities and legislation. They must be honest and courteous to clients. They must not mislead or deceive their opponents. They must treat everyone with whom they interact, with honesty and courtesy.

Aside from the requirement to advise the court about adverse legal authorities and legislation, the rules do not impose a positive obligation to reveal information unless it is necessary to correct a half-truth or to correct a prior statement which has since become false.

The rules in relation to clients, opponents and others are easily transferable to mediation. The rules in relation to courts are an awkward fit in mediation. It seems that practitioners must treat mediators as courts (see the definition of ‘court’ in the professional conduct rules). If this is the case, practitioners must never mislead or deceive a mediator and they must reveal adverse legal authorities and legislation. I say that this is an awkward fit because mediators do not make substantive decisions and, unless he or she is an evaluative mediator, a mediator seems to have no need for information on adverse authorities and legislation. What is clear is that practitioners do not have to reveal other information either to the mediator or to an opponent save if it is necessary to correct a half truth or correct a statement which has become false (and of course, the practitioner must not reveal information without the consent of the client).

Mediators – duties owed to participants

The NMAS Standards

Assuming that a mediator is accredited under the NMAS and ‘bound’ by the scheme’s Practice Standards (PS), the mediator owes a duty of honesty in regard to matters of advertising and promotion of mediation. But that may be the extent of the mediator’s obligation for honesty under the PS. The mediator might owe an obligation to act with ‘integrity’ but the meaning of that term is not clear.

Rules of Professional Conduct for Lawyers

If the mediator is a lawyer, he or she is still subject to the law of lawyering.

Lawyer mediators owe obligations to the court (not to mislead or deceive). A lawyer mediator is still a lawyer and could not, for example, be a party to a fraud committed during mediation.

The rules governing the relationship of lawyers and opponents seems to have no application to mediators. Mediation participants are not the mediator’s opponents.

Mediation participants are not clients in the traditional sense.

It may be that participants are best considered to be ‘others’ (they are certainly not courts). If this assumption is correct, mediators are obliged to treat mediation participants with honesty and courtesy but there is, at least under the legal profession’s rules, no requirement for candour.

What is the safest course?

The best advice for parties (and their legal representatives) is to reveal information slowly and cautiously. If information is conveyed, care must be taken to ensure that it is accurate. Lawyer mediators must also take care to ensure that any information they convey is accurate. Since there is no general duty of candour, all those who participate in mediation – including mediators – must think before they talk. At times, they may want to take refuge in a silent ‘safe harbour’.

 

[1] United Group Rail Services Limited v Rail Corporation New South Wales [2009] NSWCA 177 (3 July 2009) [76] (Allsop P).

Reviewing of recent books on mediation and ethics

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By Dr Bobette Wolski, Faculty of Law, Bond University

 

In this post, Dr Wolski provides a quick summary and compares two recent texts on mediation and ethics.

 

Ellen Waldman, Mediation Ethics: Cases and Commentaries 2011

Many of our readers will be familiar with Professor Waldman’s book titled ‘Mediation Ethics: Cases and Commentaries’ published in 2011 by Jossey-Bass. This is only the second text of which I am aware to deal exclusively with the ethical complexities of mediation practice. Waldman’s text is ground-breaking in that it adopts a case-specific problem-solving approach to the subject. (The first text was a collection of essays edited by Phyllis Bernard and Bryant Garth, titled ‘Dispute Resolution Ethics: A Comprehensive Guide’ published by the American Bar Association Section of Dispute Resolution in 2002.) According to Professor Waldman, one of the primary aims of her text is to showcase the diverse thinking in the field of mediation and to offer guidance to mediators on how to navigate the ‘murky ethical terrain’ that they are likely to encounter in practice.

waldman-ethics

There are thirteen chapters in Waldman’s text. The first, written by Professor Waldman, discusses the ‘underlying values of mediation, its regulatory codes, and emerging models of practice’. The values identified by Waldman are: disputant autonomy, procedural fairness, and substantive fairness. Each of the remaining 12 chapters deals with a particular ethical topic by using two or more case scenarios to illustrate the tension that may exist between these core values. Of continuing interest is the tension between the promotion of disputant autonomy (eg by helping disputants make informed decisions) and concern that basic norms of fairness and equity are not violated.

The case scenarios in each chapter are followed by commentaries from two (and sometimes more) leading dispute resolution scholars who explain what they would do in the circumstances presented and why. Contributors to the book are well known to us. They include:  Forrest (Woody) Mosten, Lela Love, Jacqueline Nolan-Hayley, Julie Macfarlane, Dwight Golann, Art Hinshaw, Carrie Menkel-Meadow and Harold Abramson. These commentators do not always agree on what to do. The diversity of mediation approaches is evident: facilitative, evaluative, narrative, transformative. Here Waldman is able to highlight the very different conclusions that experienced practitioners and scholars reach when analyzing what constitutes ‘right action’ in any particular mediated case. However despite these different end-points, there is a commonality in the way commentators approach problems presented in the case studies ie the authors identify the values that are important to them, the priority that they give to these values, and the action plan that they would adopt.

Mediator Responsibility and Justice

The issue of mediator responsibility for outcome fairness is a central theme tying the chapters together. In the end, Waldman’s own opinion shines through: mediators ‘ought to bear some responsibility for ensuring that mediated outcomes meet minimal standards of fairness’ though she acknowledges that the idea ‘remains controversial and has yet to gain traction’ (email with Professor Waldman dated 10 November 2016).

Professor Waldman is also very interested in the concept of justice in mediation, a topic she explores in greater depth with Dr Lola Akin Ojelabi (see Ellen Waldman and Lola Akin Ojelabi, ‘Mediators and Substantive Justice: A View from Rawls’ Original Position’ (2016) 30 Ohio State Journal on Dispute Resolution 391).

Waldman’s book is written is an accessible easy-to-read style, with mediation and conflict resolution professionals in mind. While the book will be useful for a range of people – students of dispute resolution, academics seeking inspiration for their classes, researchers and policy makers, and anyone else seeking thoughtful analysis of mediation’s many unresolved issues, the real strength of the book is in its practice orientation.

 

Omer Shapira, A Theory of Mediators’ Ethics: Foundations, Rationale, and Application 2016

More recently another excellent text on mediation ethics has become available that being Omer Shapira’s text entitled ‘A Theory of Mediators’ Ethics: Foundations, Rationale, and Application’ published this year by Cambridge University Press.

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Many readers will be familiar with Dr Shapira’s earlier work in articles such as ‘Exploring the Concept of Power in Mediation: Mediators’ Sources of Power and Influence Tactics’ (2008-2009) 24 Ohio State Journal on Dispute Resolution 535; and ‘Joining Forces in Search for Answers: The Use of Therapeutic Jurisprudence in the Realm of Mediation Ethics’ (2008) 8 Pepperdine Dispute Resolution Law Journal 243.

A Professional Ethics Perspective

As its title suggests, in this new publication, Shapira attempts to construct a theory of mediators’ ethics – a theory he describes as ‘a professional ethics perspective’ based on role-morality and applied to a core definition of the mediator’s role. This is used as the theoretical basis for discussing and evaluating the ethical norms that govern mediators conduct, including existing codes of conduct for mediators.

Shapira argues that all mediators are placed in ethical relationships with mediation parties, the mediation profession, the public and their employers or principals and that these relationships produce certain ethical obligations. He goes on to explore the legitimate expectations of these groups and ultimately to propose a model code of conduct for mediators described as ‘a detailed set of norms of mediators’ ethics that can be rationally justified and defended with regard to mediators at large’.

This book will also be of value to ADR researchers, teachers and students, mediators and mediation participants, mediation organizations and programs, policymakers and ethical bodies.

Comparing the Books: Which is Best?

While there are practical guidelines in Shapira’s work, this is a heavy-weight text, more theory oriented than Waldman’s book, and in the end, more prescriptive in its approach. It is more about what mediators ‘ought’ to do.

Both books in their own way strive to provide guidance for mediators on how they might exercise discretion in making decisions on the many aspects of mediator conduct where there is a choice between competing values and contradictory courses of action. This is an exciting new direction for mediation professionals.

Ethics and the Mediation Community

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What does it mean to think communally about mediation ethics? It’s tempting to conceive ethics as a set of abstract rules or principles formulated by experts and then imposed from above. However, another way to think of ethics is as the product of a dynamic, community oriented process. Experienced mediators who seek to adopt an ethical attitude to their practice will notice patterns in their approaches to various disputes. Reflection upon these patterns then supplies the foundation for formulating general guidelines that arise organically from the process. This approach to identifying principles of mediation practice treats these principles are subsidiary to the situational nature of ethical judgments.

The model of mediation ethics sketched above is community oriented, rather than individualistic. This is because it recognises that the source of meaningful ethical guidelines lies in the accretion of experience in different mediation contexts over time. Mediators, then, can learn not just from their own practice, but from the experiences of others who accept the same general ethical outlook. Mediation ethics depends on the sharing of principles and guidelines throughout the mediation community. This makes full use of the store of knowledge reflected in the diverse experiences of mediators.

The community oriented model of ethics outlined above points to the importance of recognising mediation as a profession with its own specialties. This applies not only at the general level of recognising the distinctiveness of mediation, but also at the level of recognising the particular challenges that arise in, say, family mediation and allowing a store of knowledge to arise about the ethical guidelines applicable to family mediators. It may be that beyond the overarching value of party self-determination, different forms of mediation will generate quite different guidelines for ethical practice.

I do not mean to suggest there is anything radical or groundbreaking about this model. Indeed, I think it describes what already happens on an organic basis. However, the organic nature of ethics is not always fully appreciated. This results in the adoption of abstract principles that can distort or mask the evolved character of the guidelines practitioners actually follow. A mature model of mediation ethics will not hide the complexities of mediation behind the veneer of impartiality. It will embrace those complexities and challenge itself to develop ethical guidelines that can cope with them.

I’ve written previously about the evolution of ethical and legal judgments in my chapter on ‘Pre-Reflective Law’ in Maksymilian Del Mar (ed), New Waves in Philosophy of Law (Palgrave Macmillan, 2011), as well as other publications. I’m interested in exploring further what this means for mediation theory and practice.

Dispute Resolution, in Person, for Real

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So, I’m excited!

Along with 13 other members of the ADR Research Network, we have been meeting in the glorious sunshine at Queensland University of Technology’s Garden Point Campus this week. Meeting for real, in person. With coffee in hand and fuelled by victuals kindly provided by QUT law school, we have be discussing the most difficult aspects of dispute resolution theory and practice.

The ADR Research Network was founded in 2012 by a group of dispute resolution academics from across Australia. We live and work in the far corners of this big country, from Hobart to Townsville, from the Gold Coast to Bundoora. Some of us are mediators, some lawyers, some legal philosophers, educators and we all live and breathe dispute resolution. We had all met at conferences before and read each others’ work over the years and a few of us have even written together. But we wanted to do more than just see each other occasionally and referee each others’ work: we wanted to engage with each other on what we are working on, we wanted to debate the hard stuff, we wanted to share a laugh.

As well as running this blog, we have decided to write a book together, based around the theme of changing professional identities for both lawyers and mediators in dispute resolution. The increased use of ADR and institutionalisation of processes such as mediation challenge us to rethink the role of lawyers and mediators in dispute resolution. Questions arise such as is mediation now a profession? Is there a single mediation community or are there multiple communities of mediation practice? How do we train lawyers to achieve justice in mediation? What is the basis of an ethical decision making process for mediators? How best do we define mediation and is that important? Should neuroscience affect mediator practice?

The most exciting thing about our book project is that it is so collaborative in nature. Each chapter will be written by a single author but with extensive feedback from the group as a whole and from individual authors. This will create a highly reflective and tightly structured collection that we hope will be central to understanding contemporary dispute resolution practice.

We are still writing and putting together a book proposal. To give you a sense of what we are all writing about, here’s a way to see the tweets we have made over the past few days at the workshop. We have been using the hashtag #adrresearchnetwork. These tweets summarise the ideas raised by each author in our chapters and some of our thoughts around the table as a group.

Stay tuned …