The Need for a New Paradigm of Mediation Ethics

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.

2 thoughts on “The Need for a New Paradigm of Mediation Ethics

  1. My forthcoming article about party self-determination in November’s special dispute resolution issue of the Newcastle Law Review is entitled “Is Party Self-Determination a Concept Without Content?”. It concludes that party self-determination is a concept that should be abandoned as lacking utility. Here is the abstract:

    Abstract: Party self-determination is a central concept in mediation theory, yet many basic questions about it remain unaddressed. Does it describe only how mediating parties, acting together, resolve their dispute or does it also describe how they act towards each other? If the former, the name of the concept is confusing and the concept itself adds little to the existing distinction between a dispute resolved by agreement of the parties and one where a result is imposed on the parties by an adjudicative decision-maker.

    If, on the other hand, party self-determination describes how mediating parties act towards each other, it loses all content. The cause of the loss of content is misplaced concern that mediated agreements may be substantively unfair as a result of power imbalances between the parties. The concern is misplaced because a mediator cannot know whether a mediated agreement is substantively unfair and, for practical and legal reasons, cannot even up power imbalances.

    Next, does party self-determination purport to prescribe how mediation should be conducted or does it merely describe its conduct? If the former, there does not appear to be any authority for its prescriptions. If the latter, its description of mediation diverges widely from conventional Australian practice.

    Finally, party self-determination fails to explain the two central mechanisms that make mediation such an effective method of dispute resolution: The power of doubt and the terrible choice that mediating parties are forced to make during the “end game” of mediation. Given its deficiencies, the concept of party self-determination should be abandoned as lacking utility.

    Robert Angyal SC

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    • Thanks for your comment, Robert. We look forward to reading your article. You might be interested to read Chapter 9 of our book, if you haven’t already. It contains a detailed and substantive account of the notion of party self-determination.

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