A Wake-Up Call for Mediation!

The following review of Mediation Ethics: From Theory to Practice is written by Paul Kirkwood, a Commercial Mediator and Litigation Solicitor in Scotland. It originally appeared at https://paulkirkwoodmediator.co.uk/2020/11/09/a-wake-up-call-for-mediation/.

Mediation Ethics: From Theory to Practice by Rachael Field and Jonathan Crowe, is, despite its low-key title, a refreshing, challenging and for mediation, controversial book – it deserves your attention.

Self-Determination, Informed Consent and Professionalism are the Primary Principles which should underpin Mediation in the Modern Age. In this new Mediation Ethic – Neutrality and Impartiality need to take a back seat. Is this a moment of truth for Mediation?

The fundamental premise of the book is that the time-honoured sacred cows and principles thought to underpin mediation – Neutrality and Impartiality – need to be relegated to being tools (or potential mediation techniques) in the mediator’s kit, rather than seen as foundational principles. Instead mediators should embrace the real foundational principle of mediation – Relational Self-Determination armoured by Informed (legal?) Consent and a Professionalism that should include a ‘fiduciary’ duty to all parties.

In support of this premise the authors propose a new ‘contextually driven’ paradigm of mediation ethics that is not rule-based, but is driven by the context of the situation in which a decision about how to intervene by a mediator, must be made. ‘As contextual ethical approaches do not prescribe a specific path to resolving a dilemma, they require competent, discretionary, professional judgements that take account of the circumstances of individual cases and respond to them reflectively and relationally’ (Page 213 and see footnote 5).

This idea of contextual ethics (or ethics derived from practice) is compared to the ‘rule-based’ or ‘regulatory’ approach to ethics taken in the legal profession, which in the context of mediation is regarded as being ‘too fixed’ and ‘limiting’ or ‘an impediment and a barrier’ to the creativity necessary for mediators in fluid fast moving circumstances. Additionally, the authors reflect on the hierarchical, formalistic and coercive nature of regulatory systems. The authors in  anticipating a response from the wider profession  to what might be seen as an almost ‘Proudhonian’ proposition (anything goes),  suggest that they support neither a rule-based/regulatory approach, nor a strictly contextual (or practice based) approach, ‘Rather, a guided model that sits between these two extremes is most appropriate because it provides a principled framework that offers practical guidance for mediation training and practice’ (Page 175).

So far so good, but I may have put the cart before the horse. Why are the authors dropping neutrality and impartiality as foundational principles when these concepts are fundamental to the way in which so many mediators perceive themselves and their role in mediation?

This book undertakes a thorough review of the concepts of neutrality and impartiality in mediation and how they came to be imported there from law and legal practice, and notes how they have been used as a means of justifying the practice or profession of mediation as being something that is equally as good as litigation or arbitration as a means of dispute resolution. The authors posit that the importation was not necessary because (1) it is the principle of self-determination that sets mediation apart from these other forms of dispute resolution and (2) that principle is what makes mediation ‘good’ and ‘fair’. It’s not about the imposition of a decision on parties by a third-party – parties self-determine their own outcome with the help of an engaged, active and interventionist mediator.

In any event the authors argue, the concepts of neutrality and impartiality turn out, in the context of mediation, to be deeply flawed and actually work to actively prevent and forestall mediators being allowed to intervene in a way that would enable them to provide support to parties which would enhance party self-determination. Take for example providing parties with information (legal or about legal systems) that would assist in ensuring that they do have the ability to make a decision on the basis of informed consent. A duty of strict neutrality and a regulatory requirement not to intervene would prevent the provision of such information and ultimately mean, in an unbalanced power situation, that the mediators’ professed neutrality or impartiality would simply lead to a reinforcing of the power imbalance where one party would make an uninformed decision and only the other party would be truly self-determining. As the authors say ‘Our proposed conceptual framework for a new ethical paradigm in mediation focuses on informed consent as the primary basis for achieving party self-determination. It is informed consent, not mediator neutrality, in our view, that provides the mechanism by which authentic party self-determination is achieved’ (Page 181).

The authors argue that in their model of mediation ‘the ethical facilitation of party self-determination is the core objective of the mediator’s role’ (Page 181). In some situations, for example where the power dynamic between parties is equal, a mediator can appropriately adopt a neutral or impartial stance to achieve this – but neutrality/impartiality are not necessarily required to realise this value. Where there is a power imbalance, mediators may require to act in a way that contradicts the ethics of neutrality as it is currently understood in order to support party self-determination (Page 181).

The authors identify four core characteristics of party self-determination: (1) active and direct participation by the parties in communicating and negotiating; (2) party choice and control over the substantive norms that guide their decision-making (for example law); (3) party involvement in the creation of options for settlement (it is envisaged that mediators can play an active role in helping parties develop options); (4) party control over whether to come to an agreement, and if so the terms of that agreement.

For the authors the imperative of pursuing party self-determination provides the ethical driver for mediators’ actions and decision-making. Informed Consent and Professionalism provide additional ethical checks on the mediator’s practice (Page 183).

In this regard the authors note that for self-determination to lead to agreements that can be considered principled and fair, genuine self-determination has to be achievable in practice (page 193) – the way to ensure this is by using Informed Consent and Professionalism.

In the authors’ view, Informed Consent (which has also been borrowed from legal doctrine) can be supported by the mediator in a number of ways. For example, by the provision of information to unrepresented parties (page 197). However, they consider that there are three elements to achieving real Informed Consent: (1) maximisation of party control through the use of intake process and party preparation strategies; (2) ethical mediator activism in support of informed consent; (3) party access to legal and other external advice.

The intake process should be used by mediators to assess a party’s capacity for informed consent and to diagnose that party’s needs in achieving it – this would include assessing their ability to access necessary legal/professional advice and also their capacity to negotiate effectively. Where these capacities appear wanting, the mediator should take active steps to help ‘remedy’ the situation by pointing the party to sources of help – ‘’or making ‘warm’ (actively assisted) referrals to relevant services. In this sense, intake processes can be considered as a way to screen parties into mediation, and also into the most appropriate model of mediation for their dispute and their capacity for informed consent’’ (Page 200).

The intake process also provides space for mediators to ensure that parties maximise their own control and should centre ‘on capacity building through mediation preparation or coaching, ensuring that the parties know and understand the process and its principles, and that they have developed strategies for their participation’ (Page 201).

The authors also consider that ‘ethical mediator activism’ is a necessary part of supporting party self-determination by facilitating informed consent of individual parties, and that if necessary, this may be required in the form of information and even advice (page 204). Quoting Weckstein, the authors note, ‘if a party cannot or will not access external advice to support their informed consent’, then ‘it should not be considered improper for the mediator to serve as a source of pertinent information’ because ‘educating disputants about relevant norms and information enhances, rather than undermines, party self-determination’ (Pages 204/205).

The authors observe that under the current neutrality centred ethical paradigm, mediators have to differentiate between the provision of ‘information’ and the provision of ‘advice’ because the latter would be ‘unethical’, even if within the mediator’s technical competence. They contrast that with their proposed new ethical paradigm and note that ‘the critical ethical distinction is not whether a mediator has provided information as opposed to advice, as both information and advice can potentially ethically support party self-determination. Rather, in terms of the professional ideology articulated (subsequently) the issue is whether the information or advice is within the technical competence of the mediator, and whether it is provided as an appropriate fulfilment of the mediator’s fiduciary duty to the parties’ (Page 205). In considering this ethical duty it behoves the mediator to decide whether a party has the capacity to use the information or advice proffered in a genuinely self-determined way. If the party doesn’t have the capacity, and is likely to accept the advice as a decision, then the provision of information or advice in those circumstances would be unethical.

The final aspect of the authors’ proposed new mediation ethics ‘is an ideology of professionalism centred on technical competence and a fiduciary-like obligation to the parties (Page 207). This is necessary because ‘an explicit professional ideology is important to providing boundaries to the more interventionist and activist role envisaged for mediators in the proposed new ethical paradigm’ (Page 208).

A fiduciary duty arises (1) because of the high degree of trust placed by the parties in the mediator and the power that the mediator has in the whole process and (2) because the practice of mediation, in the context of the rule of law, constitutes a service to public welfare (Page 209).

In conclusion the authors advise that ‘The mediation community is therefore facing a moment of truth. Mediation practitioners must reconsider, and reframe, their identity and their role; furthermore, they must respond to the serious obligation that results from the authority and power inherent in their position’ (Page 210).

This is a revolutionary concept and it remains to be seen how the mediation world will react and what impact this will have on it.

Speaking for my own part, I have never considered neutrality or impartiality to be possible – these notions are idealistic, not realistic. I agree with the authors that mediation can only be fair if parties are able to self-determine on the basis of parties genuinely informed consent – and that there should be an ethical and indeed fiduciary duty, as conceptualised in this book, on mediators to ensure that parties are genuinely informed. This, by definition, requires neutrality and impartiality as foundational principles to fall by the wayside.

In my own mediation practice, I explain to parties that I am not ‘on either of their sides’, but rather that I am there to try and help both parties; that I am omni-partial (a Clokeian concept). I explain that I can do this by using the ‘tool of confidentiality’ where that is appropriate in private session, to enable full, frank and challenging conversations where information exchanged will only be disclosed with specific party permission. This is where the fiduciary duty should kick in, in a practical way – it is the obligation not to betray party trust with regard to confidential discussions and the equally important obligation to help the party who is struggling in accessing and understanding critical information to enable them to give informed consent and to be able to genuinely self-determine. To fail to act in such a way amounts to, in my opinion a dereliction of duty.

To my mind, the authors are articulating a set of principles which provide a framework for allowing and justifying the practical approach which some mediators (including myself) may already follow. These refined principles enable mediators to practice without fear of falling foul of the irreconcilable clash between the principles of neutrality and impartiality (which prevent intervention) on the one hand and the principles of self-determination, informed consent and professionalism (which require intervention) on the other.

This concept of mediation requires mediators to be activist and interventionist. Thanks to this book and its authors, it is shown to be possible to do this in an ethical way.

Most of the clients, lawyers and expert witnesses I have worked with in mediation have made it clear that they want mediators to bring their knowledge and experience of dispute resolution into the mediation and not to leave it outside. They don’t want an anaemic mediator who is ‘strictly neutral’ and who sits on their hands – they want someone who is active and where necessary interventionist – otherwise they say, ‘what are you here for – what are you adding?’.

To conclude – this book with its revolutionary new ‘codifying’ of principles provides an ethical means of escaping the convoluted necessity of adhering to neutrality/impartiality – not altogether ‘dumping them’ but quite rightly relegating them to the tools they should be. I applaud and endorse it.

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