Ethics in Alternative Dispute Resolution: Special Edition of Law in Context

Ethics in ADR Law in ContextAustralian Dispute Resolution Research Network members Lola Akin Ojelabi and Mary Anne Noone have coordinated and edited a special edition of Law in Context on the topic of Ethics in Alternative Dispute Resolution. The special edition was published in February 2017 and is now available for purchase either as a whole volume in book form or by subscribing to the Law in Context journal.

The special edition draws from papers presented at the ADR Ethics for Practitioners Symposium, conducted at Latrobe University in June 2015 and convened by Lola and Mary Anne. The Symposium and the Special Edition considered a wide range of factors relevant to the complex questions of ADR ethics.

The papers included in the special edition are:

Lola Akin Ojelabi and Mary Anne Noone “ADR Processes: Connections Between Purpose, Values, Ethics and Justice” – Drawing from empirical research, this paper begins to explore the relationship between process purpose, underlying values and ethical responsibilities that arise for a range of ADR practitioners working in different fields and the potential of those processes to promote substantive and procedural justice.

Ellen Waldman “Inequality in America and Spillover Effects on Mediation Practice: Disputing for the 1 Per Cent and the 99 Per Cent” –  The question for mediation scholars and practitioners is whether growing inequality is affecting the way in which society’s ‘haves’ and ‘have-nots’ access and experience mediation. At the low end of the socio-economic totem pole, government cuts in legal services – combined with mediation practitioners’ obsession with neutrality – potentiate uninformed decision-making by unrepresented parties. At the high end, models of practice catering to legal professionals’ preferences threaten to rob mediation of its transformative, therapeutic potential. This paper explores these troubling developments and queries whether growing social inequality should precipitate shifts in our thinking about mediation ethics and the way we educate the next generation of lawyers. 

Susan Douglas, “Ethics in Mediation: Centralising Relationships of Trust” – In this paper, the relationship of trust between mediator and parties is proposed as a suitable and defensible alternative ethical framework. It is argued that this relationship can be constructed according to principles associated with fiduciary and therapeutic relationships, in recognition of the distinctive socio-legal context of practice. It is argued that relationships of trust provide a convincing framework within which to consider issues of substantive fairness in mediation.

Bobette Wolski, “An Ethical Evaluation Process for Mediators: A Preliminary Exploration of Factors Which Impact Ethical Decision-Making” – When mediators are confronted with an ethical dilemma such that they must choose between two or more ‘right’ or ‘good’ but contradictory courses of action, they must take numerous case-specific factors into account in arriving at a decision that they can justify. This article identifies some of the factors which mediators might take into account in deciding what is the ‘ethically fitting’ course to be followed, including: the objectives and values given priority in mediation; the approaches or models of mediation chosen by a mediator; and the standards of conduct to which mediators are subject.

Rachael Field and Jon Crowe, “Playing the Language Game of Family Mediation: Implications for Mediator Ethics

Judy Gutman and Jodie Grant, “Ethical Conundrums Facing Mediators: Comparing Processes, Identifying Challenges and Opportunities” – This article considers several ethical issues confronting mediators in family and civil disputes. We compare ethical frameworks, drawing on issues arising from mediation practice in two specific court-connected fora. Further, we make recommendations for changes to existing mediator training and to applicable standards and codes. 

Kathy Douglas and Rebecca Leshinsky, “Ethical Concerns for Owners Corporation Managers who Informally Mediate in Owners Corporation Disputes: The Need for a Community of Practice” – Conflicts in owners corporations are not uncommon and the owners corporation or strata managers may informally mediate disputes. This article will outline research into the experience of conflict in owners corporations from the perspective of strata managers and discuss mediator ethics in this context. Managers, as informal ‘insider’ mediators, may experience a number of ethical dilemmas, most notably the issue of impartiality/ neutrality. They are part of a growing group of mediators that operate outside of the National Mediation Accreditation System. The article suggests the need for a community of practice of managers who informally mediate so that ethical concerns in their specific context can be shared and debated.

Alikki Vernon, “The Ethics of Appropriate Justice Approaches: Lessons From a Restorative Response to Institutional Abuse” – There have recently been several major initiatives in Australia in response to institutional abuse and sexual offending. This paper explores one of these initiatives: the Defence Abuse Response Taskforce. The Taskforce was established to address institutional abuse and sexual offending in the Australian Defence Force. It raised a number of important ethical questions and offers valuable lessons about appropriate justice approaches in complex matters.

Our humble-brag about this special edition is that almost all of the authors are members of our network. Congratulations to all involved in this research project, which makes a significant contribution to a thorny area of dispute resolution theory and practice.

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About Dr Olivia Rundle

Dr Rundle is a senior lecturer at the Faculty of Law, University of Tasmania. She has worked as a nationally accredited mediator and a Family Dispute Resolution Practitioner. Dr Rundle is especially interested in the role of lawyers in dispute resolution processes and the policy environment that positively encourages lawyers to engage with dispute resolution. She teaches and researches in broad areas of Dispute Resolution, Civil Procedure and Family Law.

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