Four young watching a game of cricket, Brisbane
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This post is by Associate Professor Bobette Wolski from Bond Univesity in Queensland. In it, Bobette asks some questions which we’d love your views on. You can comment by replying the this email (if you are a subscriber to our blog) or by responding in the comments box below this post in our blog. We’d love to hear your thoughts.
This month, I would like to get a conversation started about ethics and values in mediation. What are your thoughts on any or all of the following questions?
What are the critical ethical issues for mediators? Does the answer differ according to the context of the mediation (eg whether it is a commercial matter or a family matter; and whether it is court-annexed or private)? Are there special concerns attached to mandatory mediation?
What responsibility, if any, does a mediator have for outcome fairness? Assuming the procedure used is fair and that the proposed outcome does not involve the commission of an offence or fraud, should a mediator intervene to protect a party against a manifestly unfair agreement and if so, what intervention is permitted?
Should a mediator intervene to protect the interests of parties who are not involved in the mediation but nonetheless affected by its outcome? Assuming again the procedure used is fair and that the proposed outcome does not involve the commission of an offence or fraud, should a mediator intervene to protect third parties. Does the answer depend on the subject matter of the dispute? For example, in family law disputes an obligation to consider the interests of children is imposed on mediators (and legal representatives) by relevant legislation. What about in other contexts?
What can a mediator do to balance the scales when confronted with a power imbalance?
Assume that the mediator has tried everything listed in s 6.2 of the new NMAS Practice Standards. Assume further that one party is well off financially and has retained a QC. The other party is unrepresented and has no access to funds. The mediator believes that the unrepresented party is agreeing to particular terms because they are exhausted and want to end the matter. The unrepresented party appears to understand the consequences of the proposed agreement. Can and should the mediator intervene and if so, what can he or she do.
If there is a conflict of values in mediation, how should they be prioritised? There is a conflict of values involved in most of the questions set out above eg mediators might have to make a choice between self-determination, impartiality and process fairness. Is self-determination the central value of mediation?
Can you find the answer to any of these questions in the new NMAS Practice Standards? Should the answers be in the Standards?
Do the new NMAS practice standards cater for the diversity of mediation practice or are they unduly weighed towards a facilitative approach? How can the diversity of mediation practice be captured and catered for in a single set of Practice Standards?
Dr Bobette Wolski 12 November 2015