When persuasion is coercion

This post is written by Benjamin Freedman, an accredited mediator, social worker, and healthcare manager who will finish a Masters in Conflict Management at James Cook University in November 2017. His interests include interprofessional collaboration in healthcare and conflict engagement in complex organisations.  This blog entry was originally written as part of the assessment for the Masters subject Foundations of Mediation.

Mediation goes on trial

Given how often mediation and litigation occupy different spaces within the same dispute resolution landscape it is perhaps surprising how rarely the processes or outcomes of mediation have been challenged in court. While there are some plausible reasons for this, it does mean that the Australian cases which do exist afford a valuable opportunity for ADR practitioners to learn about their potential legal liability.

There is thought to be three areas of legal liability relevant to mediators:

  • Liability in contract– where a party suffers harm or loss caused by a failure of the mediator to perform in accordance with an Agreement to Mediate
  • Liability in tort– where the mediator fails to adequately exercise their specialist skills, causing an actual loss to one or more parties
  • Liability in fiduciary duties– where a mediator is in a relationship of trust with a party and acts in a way that is not in that party’s interests.

Tapoohi v Lewenberg

Tapoohi v Lewenberg is widely regarded as the most compelling test of mediator liability in Australia (see also conversations about immunity in family law and admissibility in farm debt contexts). Tapoohi v Lewenberg involved two sisters in a complex dispute about their mother’s deceased estate. The dispute had gone to court, but the parties agreed to attend mediation.

Seven facts you need to know

  • Due to the value of the estate, each sister was represented at the mediation by a team of barristers and solicitors.
  • The mediator, a QC who specialised in commercial litigation, was not mediating under a court order and there was no formal agreement to mediate (therefore no statutory immunity).
  • In position statements, pre-mediation conferences and during the mediation Ms Tapoohi repeatedly stated that any agreement should not be final until professional taxation advice had been sought.
  • The mediation took place over a single day and lasted late into the night
  • At the end of the evening, the mediator persuaded the parties that an agreement should be drafted and signed that night.
  • The mediator dictated the terms of the agreement, which was scribed by a solicitor in the legal party, and this was signed by each sister.
  • This included a provision, suggested by the mediator, that shares in the family company would be transferred for a nominal sum of $1, but no provision for taxation advice was included in the agreement.

Subsequent to this mediation, Ms Tapoohi discovered that the value of her position was substantially reduced after capital gains tax. Ms Tapoohi sued her legal team, who spread liability by including the mediator as third party to the claim.

The mediator applied for a summary judgement, hoping that the litigation would be found not to have a reasonable chance of success and therefore he would be excused as a third party. After the summary judgement was in favour of the plaintiff, the matter was settled out of court.

Seven critical learnings for the reflective practitioner

The precedence value of this case is limited as the matter was settled out of court before the full evidence was presented and tested. However, the allegations and arguments during the interlocutory proceedings provide some insight into the legal elements of many ethical dilemmas faced by many contemporary facilitative mediators.

Persuasion versus Coercion

Ms Tapoohi argued that the mediator ‘coerced’ parties to continue the mediation late into the evening, despite the misgivings of the legal representatives, two of whom had already left for the day. It is alleged the mediator recommended extending the session in such a way that Ms Tapoohi’s team felt it was a direction.

ADR practitioners often rely on their mastery of persuasion. While persuasion and coercion are both strategies that aim to influence the actions of another party, ‘coercion’ is to do so by using threats and sanctions where ‘persuasion’ seeks a voluntary and willing change by exploring interests or encouraging parties to evaluate options. The judge did not rule on whether the mediator used coercion, but this case challenges the reflective practitioner to be aware how the use of language, context, non-verbal communication and relationship can ‘frame’ whether a message is received as persuasion or coercion, even when intentions are good.

Influence the process, not the outcome

Ms Tapoohi argued that the mediator unilaterally dictated some of the critical details in the mediated agreement, including the ill-fated provision to transfer shares in the family company for $1.00. Facilitative mediators are process experts, upholding the principle of self-determination, where parties make their own decisions and the mediator does not evaluate or advise on the merits of, or determine the outcome of, disputes.  Often when mediation is on the precipice of breaking down because it is perceived by parties as too uncomfortable, risky, or difficult, the mediator has an important role in persuading parties to keep communicating and moving through the stages of process. Yet there is a difference between exerting influence on the process, versus influencing the substantive outcome.

Where the mediator may have reasonably believed it was appropriate to extend the mediation into the evening to maintain the momentum of the process, it was his influence on the substantive outcome which became problematic. This is a dilemma in many mediation contexts; where a ‘small suggestion’ from the mediator may be the difference between an impasse and a mediated agreement.

Fiduciary responsibilities

Ms Tapoohi alleged that the engagement between her and the mediator had characteristics of a fiduciary relationship, and the mediator was in breach of his responsibilities by acting in a way which was contrary to her interests. The mediator unsuccessfully argued that there were no characteristics of a fiduciary relationship with Ms Tapoohi as he was retained to provide a facilitative process, and fiduciary responsibilities towards Ms Tapoohi rested with her legal team.

While the matter of whether mediation has the characteristics of a fiduciary relationship remains, it is worthwhile to consider the imperative of a mediator to act with diligence, even-handedness and trustworthiness. While this is fairly ingrained in practice, there are also potential dilemmas, or tensions, which shape mediator self-interest and pressure to settle when not in the best interests of parties.

Facilitative mediator expertise

In this instance the mediator was a Queens Counsel with a background in commercial litigation. This became important when the judge considered the standard of practice that should have been exercised by the mediator- whether it was that of an expert mediator or an expert commercial litigation barrister. It is common that an accredited mediator will also have a professional background that is relevant to the content of the mediation. While the mediator may delineate in their own mind that they are being retained for mediation and not the skills of their background profession, this should be made explicit to parties who may be less familiar with the process-orientation of a mediator. Regardless, the National Mediation Accreditation Standards advise that ‘mediators should adhere to, and be familiar with, the code of conduct or ethical standards prescribed by the organisation or association with which they have membership’.

Legal exposure in agreement drafting

Ms Tapoohi argued that she had repeatedly asked that any agreement not be made final until professional taxation advice had been sought, and this expert knowledge was not present in the legal team. However, this condition was not included in the signed final agreement which was dictated by the mediator and scribed by one of the solicitors. This raises a question of the standard of care that is required by the mediator when drafting an agreement, and how much of the responsibility for checking its accuracy and completeness sits with the parties as signatories.

Mediation in high-stakes commercial disputes

Facilitative mediation has many advantages over other more formal processes. It can far less costly than litigation, integrative rather than adversarial, there is less of a focus on ‘facts’ or ‘evidence’ and more a focus on interests and agreements, and resolution can occur far quicker. While there is no ‘upper limit’ on the stakes that can be part of a mediated agreement, parties should be made aware that the process and outcomes are often less robust than settlement through courts. It is a challenge for facilitative mediators to identify when the dispute may require a more rigorous enquiry than what is provided by a facilitative process. Even more so, to ensure that parties understand the benefits and limitations of facilitative mediation to optimise informed consent.

Given the likelihood that these and other areas of mediator legal exposure, and questions about immunity will be tested in court in the future, it is important that facilitative mediators consider their obligations of contract, tort and fiduciary relationship during the complexity and dilemmas of everyday practice.

Further reading

Melinda Shirley and Tina Cockburn discuss whether mediators operating outside statutory immunity will be liable for negligence in the aftermath of Tapoohi v Lewenberg

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The Promise and Challenges of International Tax Treaty Arbitration

Double Taxation

Double taxation imposes a significant barrier to global trade and investment. Traditionally, bilateral tax treaties (of which Australia has concluded more than 40) have attempted to eliminate double taxation, but disputes often arise about how these treaties should be interpreted and applied.

International organisations such as the OECD have sought to encourage the use of mandatory arbitration clauses to resolve these matters. However, this move has met with significant resistance from member nations.

In a recent post at austaxpolicy.com, Michelle Markham explores the reasons for this resistance and argues that arbitration of international tax disputes presents significant advantages to both governments and taxpayers.

Read the full post here: http://www.austaxpolicy.com/recurring-resistance-tax-treaty-arbitration-dispute-resolution-mechanism/

Conflict coaching: Panacea or placebo?

Aside

My dispute resolution ‘journey’ began with life as a litigation lawyer.  While completing my Master of Laws I studied a subject on ‘alternative dispute resolution’ and we had the option of doing an extra two days of training to become certified under what was then a Certificate 3 in Mediation.  This training was enough to change my path from lawyer to mediator and I began a PhD which looked at how different approaches to dispute resolution (litigation and mediation) impacted on psychological outcomes for participants.  Some years later I completed conflict management coach training in the CINERGY model, and subsequently developed the REAL Conflict Coaching System, which I now practice and teach through Conflict Coaching International.  For a link to a talk I gave a few years ago in the US about the REAL Conflict Coaching System and the philosophy that it is based on, see this youtube link.

Conflict coaching is a one-on-one process during which a conflict specialists ‘coaches’ someone in conflict to assist them to manage their conflict more effectively and perhaps even resolve it.  The conflict coaching does not provide advice or advocacy-type support, rather the coach facilitates a kind of reflective process through which the client gains insight into the situation they are facing and ideas for moving forward.

Conflict coaching:

  • Provides the client with undivided attention
  • Is founded on deep listening
  • Gives the client non-judgmental support
  • Uses curious questioning
  • Promotes self-reflection
  • Promotes empowerment

A quick note on terminology:  The process I am discussing here was originally called “conflict coaching” but the name has fairly recently developed into “conflict management coaching”, I assume for a number of reasons:  Firstly, to emphasize the connection between conflict coaching and management/executive coaching; but secondly and perhaps more importantly, to highlight that the coaching process is about supporting people to develop strategies to manage their conflict, not to teach them how to have conflict (emphasizing that it’s nothing like being a boxing coach!).  It’s also interesting to note here that the process has not been called conflict resolution coaching and this is an important point – the aim of conflict coaching is not necessarily to resolve the conflict.  In one sense, including the word “management” is an attempt to include a positive term alongside the word “conflict” which is often seen as negative (so one would not want to provide coaching for someone to engage in “conflict”; whereas coaching someone to engage in “management” sounds more constructive).  However, this tends to perpetuate the idea that conflict is something negative, when in fact in can be something very positive if it is engaged with appropriately.  For this reason (and for pragmatic reasons of brevity) I continue to use the simple term “conflict coaching”.

When considering the place of conflict coaching in today’s suite of conflict support services, it’s useful to consider the changing nature of societal responses to new conflict resolution processes. Laurence Boulle, in his book Mediation: Principles, Process, Practice identifies the following ‘waves’ of responses to mediation in Australia, which be equally applied to the development of conflict coaching as a service:

  • First wave: Optimism and idealism
  • Second wave: Skeptism, hostility, call for exacting standards
  • Third wave: Balanced understanding, recognition and organization, mainstreaming
  • Fourth wave: Cross-fertilisation
  • Fifth wave: Integration and interconnectedness (which can lead to an identity paradox, as the process becomes blurred with others). [1]

Where is conflict coaching currently on this spectrum?  Well, there is certainly some optimism and idealism (at least from those offering conflict coaching services).  There is also some skeptism, particularly about the potential for a one-on-one process to achieve conflict resolution.  There have also been moves towards accreditation of conflict coaches, and some models provide their own practice standards, but these are not widespread or nationally recognized in the same way as the Australian National Mediator Practice Standards.  In some sectors (e.g. the Australian Defence Force) there is evidence of a strong understanding and mainstreaming of conflict coaching, but this is not universal.  There is perhaps the beginning of cross-fertilisation, with referrals to and from mediation and other conflict resolution processes, and there is also some blurring of the process with others (e.g. counseling or advocacy) but this is probably more based in a general ignorance of the process rather than widespread integration and interconnectedness.

The process of conflict coaching began as a back-up plan when mediation was not possible (usually because one party was not able or willing to participate).  It is first recorded as being offered at Macquarie University in Australia and was known as “Problem solving for one” (developed as a one-on-one process based on Fisher and Ury’s interest-based negotiation model) and then at Temple University in the USA (based on the Thomas-Kilman Conflict Mode Instrument). For a brief overview of the development of conflict coaching see chapter one of this thesis about mindfulness in conflict coaching.

Recently, however, conflict coaching has been used as more than just a back up plan when mediation is not possible.  Rather, it is frequently the first process choice, before and often instead of mediation.  It can be used as a preventative measure.  Conflict coaching can also be used as a kind of ‘triage’ process into other services.  It can also be used post-mediation.

There are a range of different models and approaches.  The most well known model in the Americas and Australia is the CINERGY model, however other models have developed including the narrative-based Comprehensive Conflict Coaching model and the Australian-developed REAL Conflict Coaching System.

In my opinion, the increase in popularity of conflict coaching as a process can be explained by a number of factors: Firstly, there is a shift towards individualized services.  Secondly, and somewhat contradictory to its original purpose, mediation is now often seen as “too formal” a process.  Another impacting factor is arguably that people are losing the capacity and motivation to communicate directly with those with whom they are in conflict and so are more comfortable with a process that does not require them to do so.  People in conflict also want someone “on their side” but not necessarily a lawyer/advocate.  There is also a growing social focus on self-development.  When conflict coaching is sold as a kind of professional development exercise, it is also easier to motivate staff to participate.

The growing popularity of conflict coaching is consistent with the shift in emphasis towards self-determination in dispute resolution rhetoric.  It is popular with those seeking to “do it yourself” and empowerment, and also provides an individualized and just-in-time support for those experiencing conflict.  Conflict coaching is broadening in scope, and is being used in contexts including:

  • Managers dealing with staff conflict;
  • Preparation for mediation, negotiation, litigation;
  • Divorce coaching;
  • Negotiation coaching;
  • Self-represented litigant coaching;
  • Change management coaching;
  • Conflict coaching for students in school;
  • Conflict coaching to support people to implement parenting plans agreed upon during family dispute resolution;
  • Conflict prevention as well as resolution.

Some boundaries are being blurred, for example: conflict coaching is being provided by individuals who are not independent (e.g. managers) and it is sometimes being used as an educational tool and an ongoing, rather than a short-term, intervention.

So is conflict coaching the panacea we have been waiting for to support individuals to manage their conflict more constructively?  In its favour, it promotes self-determination and empowerment, integrates well with other processes, and is flexible and individualized.  However, it is not suitable in all individual conflict situations (e.g. family violence and bullying are typically not appropriate for conflict coaching, unless used very carefully by practitioners who understand the dynamics of power-based violence – supporting a client to be more assertive in engaging with a perpetrator of violence can result in the violence escalating).

It is difficult to evaluate the benefits of conflict coaching apart from based on an individual’s perceptions of how it made them feel.  It is hard to prove that people who access conflict coaching services move on to actual improvements in their conflict management / conflict resolution.  It is also important to consider whether conflict coaching is replacing more helpful interventions such as early conflict education, communication skills development, and in a workplace – effective performance management.

It seems that the answer lies somewhere in between the two poles of placebo and panacea.  Conflict coaching can make a client feel better, by giving them a forum to vent and to be listened to attentively and without judgement.  It can also make managers feel better when they refer an employee to conflict coaching as they feel they have done something productive in response to a conflict situation in the workplace.  However, conflict coaching used unmindfully can act simply as a placebo, and an expensive exercise without any objective improvement in the client’s conflict situation.  On the other hand, conflict coaching, even when used appropriately, is not the answer to all conflict situations.  It also may need to be used in conjunction with other conflict services in order to provide a holistic response that maximizes the chances of a lasting positive outcome.

[1] L. Boulle, Mediation: Principles, Process, Practice, 3rd Ed. (Lexis Nexis Butterworths, Chatswood, 2011), pp 349-351.

Don’t fear robo-justice. Algorithms could help more people access legal advice

John ZeleznikowVictoria University

This post by ADR Research Network member and Professor John Zeleznikow appeared in academic commentary site The Conversation on 23 October 2017.

File 20171018 32345 1tsa5e8.jpg?ixlib=rb 1.1
Should we be afraid of robo-justice?
Maksim Kabakou/Shutterstock

You may have heard that algorithms will take over the world. But how are they operating right now? We take a look in our series on Algorithms at Work.


Algorithms have a role to play in supporting but not replacing the role of lawyers.

Around 15 years ago, my team and I created an automated tool that helped determine eligibility for legal aid. Known as GetAid, we built it for Victoria Legal Aid (VLA), which helps people with legal problems to find representation. At that time, the task of determining who could access its services chewed up a significant amount of VLA’s operating budget.

After passing a financial test, applicants also needed to pass a merit test: would their case have a reasonable chance of being accepted by a court? GetAid provided advice about both stages using decision trees and machine learning.

It never came online for applicants. But all these years later, the idea of using tools such as GetAid in the legal system is being taken seriously. Humans now feel far more comfortable using software to assist with, and even make, decisions. There are two major reasons for this change:

  • Efficiency: the legal community has moved away from charging clients in six-minute blocks and instead has become concerned with providing economical advice.
  • Acceptance of the internet: legal professionals finally acknowledge that the internet can be a safe way of conducting transactions and can be used to provide important advice and to collect data.

This is a good development. Intelligent decision support systems can help streamline the legal system and provide useful advice to those who cannot afford professional assistance.

Intelligent legal decision support systems

While robots are unlikely to replace judges, automated tools are being developed to support legal decision making. In fact, they could help support access to justice in areas such as divorce, owners corporation disputes and small value contracts.

In cases where litigants cannot afford the assistance of lawyers or choose to appear in court unrepresented, systems have been developed that can advise about the potential outcome of their dispute. This helps them have reasonable expectations and make acceptable arguments.

Our Split-Up software, for example, helps users understand how Australian Family Court judges distribute marital property after a divorce.

The innovative part of the process is not the computer algorithm, but dividing the process into 94 arguments, including issues such as the contributions of the wife relative to the husband; the future needs of the wife relative to the husband; and the marriage’s level of wealth.

Using a form of statistical machine learning known as a neural network, it examines the strength of the weighting factors – contributions, needs and level of wealth – to determine an answer about the possible percentage split.

Other platforms follow a similar model. Developed by the Dutch Legal Aid Board, the Rechtwijzer dispute resolution platform allows people who are separating to answer questions that ultimately guide them to information relevant to their family situation.

Another major use of intelligent online dispute resolution is the British Columbia Civil Resolution System. It helps people affordably resolve small claims disputes of C$5,000 and under, as well as strata property conflicts.

Its initiators say that one of the common misconceptions about the system is that it offers a form of “robojustice” – a future where “disputes are decided by algorithm”.

Instead, they argue the Civil Resolution Tribunal is human-driven:

From the experts who share their knowledge through the Solution Explorer, to the dispute resolution professionals serving as facilitators and adjudicators, the CRT rests on human knowledge, skills and judgement.

Concerns about the use of robo-justice

Twenty years after we first began constructing intelligent legal decision support systems, the underlying algorithms are not much smarter, but developments in computer hardware mean machines can now search larger databases far quicker.

Critics are concerned that the use of machine learning in the legal system will worsen biases against minorities, or deepen the divide between those who can afford quality legal assistance and those who cannot.

There is no doubt that algorithms will continue to perform existing biases against vulnerable groups, but this is because the algorithms are largely copying and amplifying the decision-making trends embedded in the legal system.

In reality, there is already a class divide in legal access – those who can afford high quality legal professionals will always have an advantage. The development of intelligent support systems can partially redress this power imbalance by providing users with important legal advice that was previously unavailable to them.

There will always be a need for judges with advanced legal expertise to deal with situations that fall outside the norm. Artificial intelligence relies upon learning from prior experience and outcomes, and should not be used to make decisions about the facts of a case.

The ConversationUltimately, to pursue “real justice”, we need to change the law. In the meantime, robots can help with the smaller stuff.

John Zeleznikow, Professor of Information Systems; Research Associate, Institute of Sport, Exercise and Active Living, Victoria University

This article was originally published on The Conversation. Read the original article.

 

The significance of collaboration in building a regional dispute resolution footprint – lessons from Singapore.

UIA v2

UIA ADR conference participants

Singapore is a great place for a holiday.

It is also a great place to learn lessons that would be very valuable for our economy in general- and our dispute resolution community in particular.

The opening session of the 24th UIA World Congress of Mediation in Singapore has given us a great snapshot of what collaboration achieves.

The big picture is enlightening. Statistics demonstrate that the economic gravity of the world is shifting rapidly to Asia which now accounts for 40% of global GDP.

The growth of Asian economies has been accompanied by a growth in the number of disputes and the Singapore Government has seen this as a commercial opportunity. It set out to create Singapore as the standout arbitration hub in Asia. Its active involvement and support has seen Singapore emerge as the third busiest arbitration centre in the world.

Through the collaborative work of its dispute resolution institutions the Singapore Government has, since 2014, broadened its sponsorship, and has moved from a focus on arbitration to a focus on dispute resolution which embraces arbitration and mediation. The aspiration is to promote Asian voices in global conversations.

A remarkable element of the strength of the mediation focus has been the commitment to collaboration and interconnectedness demonstrated by the 4 key institutional pillars:

  • Singapore International Mediation Centre (SIMC)
  • Singapore International Dispute Resolution Academy (SIDRA)
  • Singapore International Mediation Institute (SIMI) and
  • Singapore Mediation Centre (SMC)

The Court has added consistent support and leadership and through the combined efforts of the government and institutions there have been some significant achievements. A few examples are:

  • Tax exemptions for non-resident mediators
  • Collaboration between SIMC and SIAC (the Singapore International Arbitration Centre) to offer a one stop shop solutions via arb-med-arb. This provides reassurance about enforcement of agreements via access to the New York Convention
  • A link to China’s Belt and Road initiative to help businesses resolve disputes
  • SIMC’s mediation panel of 70 international mediators demonstrating significant international reach and credibility which sits alongside its panel of technical experts available to parties
  • Ongoing thought leadership projects investigating what’s next in the field – issues such as systems thinking and online dispute resolution
joel's table

Slide presented at the 24th UIA World Mediation Forum Singapore, October 2017 by Associate Professor Joel Lee of the National University of Singapore

The achievements are remarkable. The Dispute Resolution landscape in Australia would be transformed if we could achieve the same level of collaboration.

However, despite the collaboration and the investment some things are yet to be achieved. Currently mediation is the full-time day job of only one person in Singapore. Whilst there are many more full-time mediators in Australia, the situations in our 2 jurisdictions are very similar with regard to the failure to create a substantial profession of full-time mediators. The number of trained mediators in Australia far exceeds the available work.

This remains as significant a challenge in Singapore as it is in Australia.

 

What comes after neutrality in mediation ethics?

impartiality

This post previews Rachael Field and Jonathan Crowe’s forthcoming book, Mediation Ethics: From Theory to Practice, to be published next year by Edward Elgar. The book analyses the shortcomings of current neutrality-centred approaches to mediation ethics and seeks to answer the question of what might replace them.

Mediation is becoming more and more prominent internationally as a key form of dispute resolution for legal and other disputes. In some jurisdictions, participating in mediation is a compulsory pre-filing requirement in particular kinds of legal matters. Many benefits have been claimed for mediation as a mode of resolving disputes, including its informality, flexibility, less adversarial nature and focus on the parties and their interests. The growth of this form of dispute resolution has produced a considerable academic literature, but the theoretical foundations of mediation ethics have been relatively neglected.

Discussions of mediation ethics have traditionally focused heavily on the notions of mediator neutrality or impartiality. However, this focus has been criticised in recent decades for being unrealistic and overlooking the power dynamics between the parties. There is now a significant body of academic literature questioning whether mediators can ever truly be neutral and asking whether the concept of neutrality serves to mask the mediator’s actual power and influence. A number of authors have argued that it can be beneficial for vulnerable parties if mediators are prepared to play a more proactive role in appropriate cases.

The centrality of neutrality in mediation ethics, then, has increasingly been questioned and undermined. There is, however, a lack of consensus on what should replace it. The question is pressing given both the increasing reliance on mediation by domestic legal systems and a growing perception of mediation as an emerging profession. A traditional hallmark of a profession is its ability to self-regulate by applying communal standards of conduct. The idea of mediation as a profession therefore requires the mediation community to be able to articulate its core ethical standards. What, then, comes after neutrality? Can the concept be modified in response to these concerns or should mediation ethics have a different focus?

The present book offers a response to these questions. It develops a new theory of mediation ethics that emphasises the nature of mediation as a relational process. We argue that the focus of mediation ethics should move away from the untenable notions of neutrality and impartiality and towards a focus on enabling party self-determination. We supplement this focus with a view of mediation ethics as emerging dynamically from the efforts of mediators to respond to the needs of the parties. This provides the basis for a new picture of the mediation community as a community of practice with its own internal standards of excellence. We build on this theory to present a vision of what it means to think about mediation as a profession.

Chapter 1 opens the book by introducing the current paradigm of mediation practice, discussing the most commonly employed models of mediation and the extent to which they assume mediator neutrality or impartiality. Chapter 2 gives an overview of the historical development of codes of meditator conduct in the United States and elsewhere, showing how the facilitative model of mediation, with its ideals of neutrality and party self-determination, serves as an implicit yardstick for many forms of mediation practice. Chapter 3 then discusses the ideals of neutrality and party self-determination in more detail, examining how these notions are understood in the mediation literature, and considering the interaction between them.

Chapter 4 critically examines the notion of mediator neutrality, concluding that the dominant neutrality-centred approach to mediator ethics is at odds with the realities of mediation practice and is therefore untenable. In particular, the demands of neutrality place mediators in a position where they are unable to respond to the needs of individual parties without stepping outside the ethical boundaries of their role. Chapter 5 further problematises existing approaches to mediation ethics by considering the ways in which the relative informality of mediation may disadvantage inexperienced or vulnerable participants by requiring them to negotiate an unfamiliar genre of discourse. This provides the springboard for the new model of mediation ethics outlined in the subsequent chapters.

Chapter 6 introduces a new framework for mediation ethics that abandons the traditional emphasis on neutrality in favour of a focus on supporting party self-determination. The primary role of party self-determination in this new framework is supported by a focus on informed consent and an ethos of professionalism. Chapter 7 further operationalises this new ethical framework by offering a series of ethical guidelines that mediators can use to apply the framework in their practice. We argue for a contextual and relational conception of mediation ethics that is not rule-oriented, but encourages mediators to form appropriate and considered judgments in response to ethical challenges.

Chapter 8 then builds on this ethical framework to advance a conception of mediation as a professional community. We argue that mediation ethics is best understood as an evolving body of standards emerging over time by a process of consensus, rather than a set of rules or principles imposed from above. This picture of ethics is well suited to mediation due to its relationality and focus on the parties and their interests. The key feature of mediation, on this view, is not that the mediator is neutral or impartial, but rather that the parties are supported to achieve genuinely self-determined outcomes. This offers a more tenable basis for mediation ethics than the traditional emphasis on neutrality.

More Perfect Podcast series

Readers of this blog may be interested in The “More Perfect” podcast series and a particular episode on reconciliation and apology. This was brought to our attention by Monash University academic and The Outer Sanctum podcaster extraodinaire, Dr Kate Seear.

The More Perfect podcast series (produced by Radiolab) has just returned for a second season. They examine important cases from the US Supreme Court and the first episode of the new series is about the Dredd Scott case, a case about slavery and citizenship.

It takes a bit of an unexpected turn, though, as it deals with issues about reconciliation and apologies. Readers might  be interested in it from a dispute resolution or non-adversarial justice perspective, just because it raises some interesting questions about how to reconcile past wrongs (and whether this is possible).

The relevant episode is here, and it is called “American Pendulum 2”. It might be useful for teaching, too.