As Ellen Waldman notes in the forward of her book, Mediation Ethics: Cases and Commentaries, ethical decision-making is no easy matter. It often requires a difficult choice between competing interests. Unlike the law, which involves more concrete concepts, ethics are somewhat amorphous and often must be determined through the lens of experience and based on the context in which a particular situation arises.
Ethics in the context of mediation practice is particularly difficult. As Waldman notes, mediation is a multidisciplinary field with no specific entry qualification or exams and no regulatory body to oversee the field. Mediators approach their task of breaking impasse and resolving conflict using a variety of styles and approaches.
Mediation Ethics acknowledges these challenges and tackles the subject with a novel and practical approach. Waldman first sets the backdrop with an in-depth and informative discussion of the values, models and codes that are the base of any analysis of mediation ethics. She then presents real-world scenarios and calls upon commentators – all mediation specialists from across the globe – to offer analysis from their own diverse perspectives.
At the core of each analysis are three underlying values: disputant autonomy, procedural fairness and substantive fairness. Waldman gives a concise and pragmatic description of these values and then describes the broad national codes that govern mediator conduct. The most widely known is the Model Standards of Conduct for Mediators, which was revised in 2005. As Waldman notes, “The Standards have assumed a Talmudic status in a field eager for direction. Like the Bible, Quran, or other holy texts, the Standards serve as the textual touchstone for virtually every argument regarding what mediation is or should be.” But they and most other specialized standards and codes that attempt to guide mediators are aspirational and do not have the force of law, a fact Waldman acknowledges and tackles head on.
Recognizing that divergent philosophies about mediation will undoubtedly shape an ethical analysis, Waldman gives a brief overview of the multiple models of mediation and the distinctions between problem-solving and relationship-building approaches. In the problem-solving model, mediators are either evaluative or facilitative or sometimes move between the two approaches. In the relationship-building model, mediators take a transformative or narrative approach, in which the ultimate outcome of the mediation is less about settling a dispute than about affecting relational change and personal growth or helping the parties move past the dispute into a different view or narrative of the situation. Waldman encapsulates each approach and explains why mediators working within different frameworks might reach different conclusions or perhaps get to the same outcome by different analysis.
Once she has set the backdrop, Waldman presents a variety of hypotheticals and calls upon prominent mediators and scholars to discuss how they would deal with the situations. Each subsequent chapter starts with a discussion of the value implicated and the guidance provided by the Model Standards or other guidelines. An editor’s case is presented to illustrate the issue and then a more difficult scenario is presented. The commentators provide an in-depth and candid discussion of how they would approach the issue, and then Waldman summarizes, compares and contrasts their responses.
The first issue Waldman tackles is the subject of party autonomy and diminished capacity. She outlines the components of capacity to participate in a mediation (understanding, appreciation and communication) and whether accommodations might be sufficient to bolster capacity. She then presents a real-life scenario involving an elderly woman who lives alone in her own home whose health is declining and who is exhibiting mild signs of dementia. The woman’s daughter, with whom she is not close, files a petition for guardianship, which the woman opposes. At a court-ordered mediation, the daughter’s attorney challenges the woman’s capacity and asks the mediator to terminate the mediation and return the matter to court. What is the mediator to do?
Waldman suggests there are two main questions to answer: whether the woman has the capacity to participate and also whether she has the capacity to bind herself to a particular outcome. Waldman then takes the reader through an analysis of these issues, and concludes, “Only if the disputants lack the functional abilities to understand, appreciate, and communicate should we intervene and consider terminating or otherwise altering the course of the mediation.”
A more difficult scenario involves a developmentally disabled young man who plays football on the local high school team. He was held back in school several times, so when he is enrolled in the 10th grade, technically he is already an adult, which renders him ineligible to participate on his high school sports team. He and his coach have brought an action under the Americans with Disabilities Act against the state Department of Education to challenge that determination. There is evidence that the young man is ambivalent about playing football and might be unduly influenced by his coach, who has come to rely on him to score the winning touchdowns. On the other hand, the coach seems genuinely to care about the young man.
Carol Liebman and Mary Radford both provide thoughtful and insightful guidance as to how they would approach the issues, each inquiring whether the student has capacity to truly participate in the mediation and whether it would be fair to allow him to bind himself to an agreement. The commentators each take a pragmatic approach, with Liebman calling on her own personal experience to lean toward a finding that the young man does have the capacity to participate in the mediation. On the other hand, Radford has serious concerns but discusses practical ways to ameliorate them.
In the following chapters Waldman takes the reader through a variety of scenarios dealing with autonomy and emotions or power imbalance, tensions between disputant autonomy and substantive fairness, mediating with untruthful parties, confidentiality, conflicts of interest and mediating across multicultural barriers.
Art Hinshaw and Gregory Firestone discuss how mediation confidentiality may be at odds with duties to report suspected child abuse based on allegations made during a divorce mediation. Wayne Thorpe and Bruce Meyerson opine on a scenario where an attorney mediates a racial bias case against Company A and then that attorney’s partner is asked to represent a plaintiff in an age discrimination matter against the same company, presenting a potential conflict of interest. John Bickerman and Jeremy Lack grapple with issues that arise when a mediator realizes that a seemingly routine business dispute actually involves a failed drug deal, a scenario based on an actual mediation conducted by Julie McFarlane, who offers her own analysis of the issues.
How often do mediators lament that someone in the room is being untruthful, and the lies may lead to an unfair result? Dwight Golann and Melissa Brodrick address a particularly difficult scenario, raising questions such as “What should the mediator do when the quality of decision-making for one party in a mediation may be skewed by bad-faith, or even downright dishonest, behavior by the other party?” and “What is the role of the mediator in determining and acting on the truth?”
In an increasingly multicultural society, mediators must confront cultural differences that complicate mediation. “Whether your mediation practice takes you on a circuit of local postal codes or globe-trotting overseas, it is likely that you will find yourself mediating with parties from a different culture .... Occasionally ... the clash of cultures will lead to ethical conundrums.” To illustrate this, Carrie Menkel-Meadow and Harold Abramson address a divorce mediation involving an Iranian-American couple who follow Islamic law, which may lead to a result inconsistent with a likely outcome in the American court system. Both provide careful analysis but reach opposite conclusions about whether they would withdraw as mediators. As Waldman observes, “Although superficially it seems as if they ‘went to the same movie theater but saw a different show,’ a closer look reveals their analyses to be more similar than initially apparent .... Each of these thoughtful mediator-scholars reaches a fork in the road where a singular path calls. In assessing the road to take and the road not taken, they are prodded by different visions of mediator autonomy in the process.”
Waldman also offers advice to ADR provider organizations, both public and private, that may encounter ethical tensions despite their best attempts to remain neutral. She recounts the history of the development of codes and standards for providers that, even though “lacking the force of law, their identification of ethical flashpoints reveals areas where ADR providers must exercise special care in the initiation, expansion, and modification of their programs.” Phyllis Bernard and Susan Yates analyze a court-connected mediation program for small claims matters, staffed by law students who have grown uncomfortable with recurring landlord-tenant matters where the endings are becoming predictable. Bernard and Yates discuss issues such as imbalance of power, right to self-determination and the usefulness of bringing together stakeholders such as community advocates, landlords and others to address the broader issues presented by zoning regulations and their impact on certain communities.
These are just a few of the scenarios presented, all of which address challenging situations mediators confront regularly in their practice. The collective wisdom of these experienced practitioners is rarely presented in a single place, and many mediators would feel very fortunate to be able to call upon the breadth and depth of talent represented by the commentators in this book. Any mediator faced with a difficult ethical inquiry or law school professor attempting to lead students to think broadly about ethical obligations in mediation will find Mediation Ethics: Cases and Commentaries an invaluable resource.
Kimberly Taylor serves as the COO of JAMS and oversees operations in the United States. Working directly with the president and CEO and leading a team that spans 26 resolution centers in North America, she is responsible for the company’s day-to-day operating activities. Taylor previously served as JAMS associate general counsel and is the Co-Chair of the ABA Section of Dispute Resolution Committee on Mediator Ethical Guidance. She can be contacted at email@example.com.