How Should We Think About Mediation Ethics?

nmc-keynote

This post summarises some themes of my keynote address at the recent National Mediation Conference, entitled ‘Two Models of Mediation Ethics’. (Thanks to Emma-May Litchfield for the photo.)

It is becoming increasingly common to speak about mediation as a profession. There is broad agreement among sociologists as to the main hallmarks of a profession. These include institutionalised education and training; a body of specialised knowledge and expertise; professional licensing; workplace autonomy; a communal code of ethics; and peer to peer accountability. Mediation in Australia now fulfils many of these yardsticks. Specialised mediation courses are offered by universities and other institutions. Many of these courses are designed to fulfil the requirements of the National Mediator Accreditation Scheme (NMAS). Shared ethical codes exist in the form of the Practice Standards associated with NMAS, as well as codes maintained by other bodies, such as the Law Council of Australia.

Why, then, might some people think that mediation in Australia still falls short of being a profession? One concern might relate to the absence of a coordinated process for professional discipline. The Mediator Standards associated with the NMAS are maintained by the national Mediator Standards Board (MSB), but the MSB does not hear complaints or impose disciplinary sanctions. Complaints must instead be directed to the Recognised Mediator Accreditation Body (RMAB) to which the mediator belongs. There are more than thirty-five such bodies recognised by the MSB and their complaints processes vary widely. Can it really therefore be said that mediation has the kinds of accountability processes that characterise a profession?

This is a complex and important question. It raises deep issues about how we think about professional ethics, both in terms of where ethical standards come from and how they are enforced. This issue, in turn, signals questions about the nature of the mediation community. Should a professional community ideally have a centralised body that promulgates and enforces ethical standards? Or is a more decentralised model sometimes appropriate? If mediation increasingly views itself as a distinctive profession, does this necessarily mean we should move towards a more coordinated model of professional discipline? Does legal regulation have a role to play in ensuring universal accreditation and disciplinary processes?

These are questions the mediation community must ask itself as part of its process of growth, maturity and professionalisation. My suggestion is that we need to distinguish two different models for thinking about mediation ethics and decide, as a professional community, which path we wish to follow. The first option is the regulatory model familiar from its adoption by the legal profession. The regulatory model assumes that ethical rules will be drafted by influential members of the profession and promulgated as a code binding upon all. The standards contained in the code will be taught as part of a standardised accreditation process, often linked to licensing and enforced by legal regulations. Formal complaints about breaches will be adjudicated by a body of practitioners with the power to impose professional sanctions, such as suspension or withdrawal of accreditation.

An alternative way of thinking about professional ethics is what I call the practice model. The practice model begins with the insight that intuitive judgments lie at the heart of ethical discourse. Ethical standards, on this view, do not arise when they are formulated by a body of experts. Rather, they emerge and evolve over time as members of a professional community respond to ethical scenarios. The decisions made by individual practitioners are repeated and internalised when the same situations recur over time. These judgments are then shared and reinforced through communication with other members, who may have had similar experiences. As a result, certain kinds of responses come to be widely shared within the group. The members of the group may then reflect individually and collectively upon these responses, expressing them as principles that are adopted as guides for future conduct.

There are, I think, three key features of mediation that make it particularly hospitable to the practice model of professional ethics outlined above. First, mediation is an inherently relational process. The regulatory model mirrors, to some extent, the traditional focus of legal practice on litigation—a hierarchical, formalistic and coercive form of dispute resolution. Mediation, by contrast, has often been presented as offering a more relational alternative to the adversarial norms of the courtroom process. Mediation takes many diverse forms, but at its core lies the simple idea of parties sitting down together and discussing their interests in a structured format. Mediation, in this sense, places a heavy emphasis on what the French philosopher Emmanuel Levinas calls the face-to-face encounter with the other. This makes it particularly well suited to generate meaningful discourse about ethical responsibilities.

Second, mediation has long been regarded as a relatively unstructured form of dispute resolution—certainly by contrast to litigation and the courtroom environment. It is unstructured both in the sense of being relatively informal in its procedures and in the sense of not being governed by substantive rules for resolving the dispute at hand. Mediation, of course, is not entirely unstructured: mediators will often set out ground rules and disputes may implicitly take place in the shadow of the law. Nonetheless, this feature of mediation makes it a far more dynamic environment than many other forms of dispute resolution. Mediators are innovators: the process enables them to try new things and evolve their practices over time.

A third feature of mediation that lends itself to the practice model is its interest-based focus. It is commonly accepted that whereas litigation focuses on legal rights and duties, mediation focuses on the interests of the parties. This enables mediation to retain its flexibility and forge a workable outcome in each dispute. The interests-based focus of mediation also makes it hospitable to a model of professional ethics that views ethics as a set of shared responsibilities, rather than a set of formal rules imposed from above. Ethics, understood in this way, can be responsive to the needs and interests of all those affected by the mediation process. It need not be constrained by the feasibility or desirability of formal attributions of blame.

It is important for the mediation community—including both practitioners and scholars—to reflect upon its distinctive attributes and avoid complacency about its shared values. If mediators want their community to be defined by relationality, dynamism and shared responsibility, rather than by hierarchies and formal rules, they need to be able to articulate that vision and fight for it. They should not simply accede to the widespread assumption that a mature professional ethics equates to a regulatory model. The mediation profession needs to have an ongoing dialogue about the prospect of centralised licensing and regulation (as has occurred in other jurisdictions) and ask whether that is really what its members want. It is up to the mediation community to determine its shared goals and values—and whether these are best realised through a regulatory or practice-based approach to ethical life.

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About Jonathan Crowe

Jonathan Crowe is Professor of Law at Bond University. His research explores the philosophical relationship between law and ethics, looking at issues such as the nature and foundations of legal obligation and the role of ethics in legal reasoning.

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