MEDIATION AND ETHICS
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 from 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. infairness and trustworthiness.
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 which 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 organisations 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 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 recognises possible conflicts of interest or circumstances which may affects 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 a 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 counsellor/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 behaviour 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 which 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 decision 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 emphasise the importance of communication and how a particular legal system recognises it aswell. 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 emphasised 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.
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 emphasises 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.
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.