Mediation and ethics

How to cite this journal: Author, Date of the post, WMO Conflict Insight, Title of the post, ISSN: 2628 6998, https://worldmediation.org/journal/

ABSTRACT *

This article presents the ethical and procedural principles that give the mediation process its substance and trustworthiness. Starting from the observation that conflicts expose parties in their vulnerability, the author argues that whoever is entrusted with their resolution holds a position of power and trust, and that a mediator must therefore be not only an expert but an ethical and responsible person. The paper examines the core principles in turn: competence and continuing professional development as reflected in national codes such as that of the Slovenian Association of Mediators; neutrality and independence, including the duty to disclose conflicts of interest and, following Brown and Marriott, to decline appointment in certain circumstances even with informed consent; impartiality and the creation of a safe, predictable process; confidentiality as a building block of mediation, anchored in the European Code of Conduct for Mediators; and fairness, understood as securing equal participation, guarding against power imbalance and avoiding undue pressure to settle. Drawing on English and Welsh case law and the EU Mediation Directive, the author shows how legal systems protect mediation communications, and concludes that mediation embodies what is most natural to human beings: dialogue and cooperation, made safe by a professional and ethical mediator.

KEYWORDS *

Mediation principles, mediator ethics, competence, neutrality, impartiality, confidentiality, fairness, European Code of Conduct for Mediators, EU Mediation Directive, without prejudice rule, professional responsibility

INTRODUCTION

Conflicts are a considerable part of human relationships and thus cannot and should not always be avoided. However, we are able to choose how we address them and that is when mediation comes into the picture. As part of our everyday lives, conflicts can open new possibilities or they can represent an onerous challenge. Moreover, conflicts can also be very intimate and when dealing with them or their aftermath we are often exposed and vulnerable and so the way we choose to address our conflicts is very important. Consequentially, whoever is trusted with resolution or management of the conflict, may he or she be a judge, an arbitrator, or a mediator, shoulders great responsibility, and is in the position of power and trust. Following that, a mediator must not only be an expert but should also be a trustworthy and ethical person who understands his or her responsibility (ethical, professional, and legal). In this article, I will present some of the crucial principles integral to a mediation process which define the process not only in the formal way, i.e. in-process and stages of mediation but also in a substantial way, i.e. in fairness and trustworthiness.

MAIN CORPUS

Before the process of mediation commences there is a mediator – so who is a mediator? The answer to this question is not a simple one, however, there are some traits that may broadly define a mediator. One of them is competence which translates into a prerequisite that a mediator must be competent and knowledgeable not only of the process of mediation (procedural knowledge) but also in the process of mediation (substantial understanding). Different states and organizations have codes of conduct, for example in Slovenia – The Slovenian Association of Mediators – which define such traits and constitutes the educational path and continuing professional development in order to renew and enrich mediator’s skills and knowledge. The importance of professionalism and personality of the mediator is also reflected, for example in the European Code of Conduct for Mediators which in paragraphs 1.1 and 1.2 states that a mediator should disclose to the parties their background and experience for the purpose of enabling the parties to make an informed choice (Blake, Brown and Slime 2016).

Other traits of the mediator and also principles in the mediation process are neutrality and independence. I have already mentioned the importance of a mediator being professional and knowledgeable and in addition, the mediator ought to disclose their professional background to the parties. Another facet of disclosure is also the necessity that a mediator recognizes possible conflicts of interest or circumstances which may affect the mediator’s neutrality. Additionally, the mediator must disclose such facts or and circumstances to the parties for example close social ties with one of the parties or any other possible partiality which a mediator may hold (Moore 2014). Some authors, for example, Brown and Marriott, claim that even if the mediator has informed consent from both of the parties regarding the disclosed circumstances, there is still the necessity for a mediator to refuse mediation. These circumstance being: the mediator or with the mediator associated persons have a financial or personal interest in the outcome of the mediation, the mediator and client(s) were at any time in a therapist/client or counselor/client relationship, also important are beneficiary and trustee (past) relationships or there may be personal or other circumstances which may threaten the mediators’ impartiality (Brown and Marriot 2011).

Impartiality is also an important principle to which a mediator needs to adjust his or her behavior so as not to act without impartiality towards the parties (European Code of Mediators, para 2.2). In short, it means mediators must not do anything or behave in any way that may demonstrate actual or perceived bias. The clients enter into the mediation process on the basis of a voluntary agreement and need to feel safe in the process and should be able to trust their mediator (Moore 2014). In order to provide such a safe space, a mediator should ensure the parties understand the nature and purpose of the process, fees and expenses, and the substance (terms) of the mediation agreement which is the voluntary (legal) basis on which the parties ascent to the mediation process and it often entails basic principles and rules of the mediation process. An important facet of providing safety to the parties is also predictability which means that a mediator should in a clear and understandable manner explain to the parties the process of mediation, the meaning of certain principles, possible timeline, and the purpose of different phases (Hayes 2017).

One of the most important principles in mediation is confidentiality which I believe to be one of the building blocks of the mediation process. For example, the European Code of Conduct for Mediators provides in paragraph 4: “The mediator must keep confidential all information arising out of or in connection with the mediation, including the fact that the mediation is to take place or has taken place unless compelled by law or grounds of public policy to disclose it. Any information disclosed in confidence to mediators by one of the parties must not be disclosed to the other parties without permission unless compelled by law.” As stated before conflict may be very intimate to the parties or there may be different important interests which otherwise parties do not wish to disclose, and therefore the mediator tackles information that is sensitive. Besides being professional a mediator must also be fair. Fairness is a subjective and debated term, at least regarding its meaning, however, a mediator must be fair in ensuring both parties are as equally involved in the process as is possible meaning they both get equal opportunities to engage and represent their side in order to build together a solution most suitable to a particular situation. In practice, such a necessity arises where one party is much stronger than the other, be it financially, institutionally, or otherwise (Ruben and Lievrouw 1990). Other sides to the fairness principle caution the mediator not to put undue pressure on a party to settle the dispute and not to coerce a party to partake in the process of mediation. This is a delicate issue because in principle a mediator should help parties to come to an agreement and not to make decisions instead of the parties. The mediator also has to be vigilant if there is any duress or undue influence which may hurt a party and the mediator has the option to terminate the mediation process (Blake, Brownand Slime 2016).

To this point, we saw the importance of a mediator not only being a professional in the broader sense but also being an ethical person who respects the process and the substantive part of mediation. What about the most important and integral essence of mediation – communication (dialogue)? It is crucial that words exchanged within a mediation process are subject to confidentiality. To elaborate further on this particularly important part of mediation, I shall use the rulings from English and Welsh courts. Of course, legal systems over the world differ and my goal here is not legal analysis but to emphasize the importance of communication and how a particular legal system recognizes it as well. For example, in Aird & Aird v Primer Meridian Ltd 2006 limitations on communications passing between the parties within the mediation or in the context of mediation were set under the without prejudice rule which bars the usage of such communications in subsequent court proceedings if the mediation is unsuccessful. In addition, the protection of communications was furthered in Smiths Group plc v George Weiss to protect investigations carried out as part of the mediation process. Furthermore in Halsey v Milton Keynes General NHS Trust 2004 the courts emphasized the integrity and confidentiality of the mediation process in stating that the court should not know, and should not investigate, why the process of mediation did not result in agreement meaning that not only communications during the process of mediation are protected but also communications before (and in connection to) mediation (Blake, Brown and Slime 2016).

In general protection of communications includes any oral or written communications made specifically for the purposes of mediation (offers, correspondence, position statements, concessions), any such communications between a mediator and a party (parties) before, during, or after mediation, and communications intended to persuade the parties to mediate (Ruben and Lievrouw 1990). We can infer from the above that communication is at most important in the mediation process and ‘good communication’ is closely intertwined with the professionality and ethics of the mediator as he or she is tasked with great responsibility to satisfy these standards. For example, the EU Mediation Directive in article 7 (that had to be implemented by May 2011), states that member states should ensure that mediators should not be compelled to give evidence regarding information arising out of mediation. On the other hand, it provides for exceptions where all parties agree or there are public policy considerations that require the mediator to give evidence.

SUMMARY *

The author identifies competence, neutrality, independence, impartiality, confidentiality and fairness as the principles that constitute mediation in substance, not merely in form. Their common thread is trust: parties who are exposed and vulnerable can only shape their own agreement in a process that is predictable, protected and evenly balanced. The paper shows that these principles are not abstract ideals but are codified in professional codes, secured by disclosure duties that can extend to declining an appointment, and reinforced by courts and legislation that shield mediation communications from later proceedings. In the author’s account, the mediator’s ethics and the protection of dialogue together form the foundation on which the entire process rests.

CONCLUSION

Mediation is of course much more than just a process regulated by rules. It plays an important role in everyday human relationships because it bears the notion of progress in dealing with conflicts. It sets aside the confrontation part which is quickly prescribed to a conflict situation and emphasizes dialogue, cooperation, and progressive communication (dialogue). All this is possible with a professional, ethical and responsible mediator who is able to understand the conflict as a whole and is able to provide a safe environment in which parties themselves will be able to shape their agreement focused on the future. It may seem a bit wishy-washy to assume such responsibility for mediation but if we look at it from a different perspective, mediation applies what is most natural to humans – communication (dialogue) and (I believe) cooperation.

POTENTIAL SOLUTION *

The tension underlying this article is a quiet but real one: mediation promises safety through principles, yet those principles live or die in the conduct of a single person, the mediator, who works behind closed doors precisely because confidentiality demands it. The task is therefore to make ethics verifiable without breaking the confidentiality that makes mediation work. Four measures accomplish this.

First, translate principles into observable commitments. Codes of conduct gain practical force when each principle is paired with a concrete behavior the parties can see: a written disclosure statement handed over before the first session, a standard opening in which process, fees, timeline and termination rights are explained in plain language, and an explicit invitation to either party to raise concerns about impartiality at any point without penalty. What the parties can observe, they can trust; what they can trust, they will use.

Second, institutionalize the duty to decline. The strict view of Brown and Marriott, that some conflicts of interest bar appointment even with informed consent, deserves adoption as a professional standard rather than a scholarly opinion. A short, published list of absolute exclusion grounds, financial interest in the outcome, prior therapeutic relationship, close personal ties, protects not only the parties but the mediator, who can point to the rule instead of negotiating their own integrity case by case.

Third, close the accountability gap with confidentiality preserving oversight. Complaints about mediator conduct should go to a professional body empowered to review them under the same confidentiality that governed the mediation itself, with anonymized publication of outcomes and principles. Regular peer supervision and intervision, already noted in earlier contributions to this journal, complete the structure: the mediator is never examined publicly, but is also never entirely unexamined.

Fourth, harmonize the legal shield around dialogue. The case law and the Directive provisions the author cites show convergence toward one rule: what is said in and around mediation stays out of the courtroom, with narrow exceptions for consent and public policy. Jurisdictions that have not yet codified this protection should do so, because parties speak freely only where the law guarantees that candor today cannot become evidence tomorrow.

Held together, these measures answer the article’s implicit question, why should vulnerable parties entrust their conflict to a stranger, with the only answer that endures: because the stranger is bound, visibly and enforceably, by principles stronger than any single case.

* Added by the WMO Editorial Team

REFERENCES

Blake, Susan, Brown, Julie and Sime, Stuart. (2016). A Practical Approach to Alternative Dispute Resolution. Oxford: Oxford University Press.

Brown J. Henry and L. Marriottources L. Arthur. (2011). ADR Principles and Practice. London: Sweet & Maxwell.

European Code of Conduct for Mediators. (2004). Launched at a European Commission Justice Directorate conference in Brussels on 2 July.

Hayes, F. Andrew. (2017). Introduction to Mediation, Moderation, and Conditional Process Analysis, Second Edition: A Regression-Based Approach. London: The Guilford Press.

Moore, W. Christopher. (2014). The Mediation Process: Practical Strategies for Resolving Conflict. San Francisco: Jossey-Bass.

Ruben,Brent David and Lievrouw, A. Leah. (1990). Mediation, Information, andCommunication. London: Transaction Publishers.