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Mediate.com

Ethical Approach v. Fair Resolution

by Alex Dukhovny
November 2003 Alex Dukhovny

What are mediation ethics? Do any of us during mediation actually stop and ask our selves if we are following the “Model Standards of Conduct for Mediators”, especially if what we are doing works? Of course not, most of us just follow our instincts and try to get the parties to agree, even if that agreement is a disagreement.

There is of course the ethical duty for a mediator to stay neutral and to be fair. But now I ask you, is it possible to be fair and stay neutral at the same time. The concept of fairness contradicts neutrality. For example, in the beginning of mediation the plaintiff and his/her attorney comes in fully prepared with graphs, videos, full discovery and even an army of experts. On the other hand, the defendant is entering the mediation with no evidence other then his/her testimony and does not even have an attorney. This is the time when ethics and neutrality contradict one another. Do you try to be fair and ask the defense whether it wants to reschedule when it is more prepared or do you try to be neutral and simply go on with the mediation, knowing that the plaintiff has already won the case.

There are numerous reasons to raise the ethical question; some of them may be impaired or incompetent parties, bargaining imbalances, and lack of legal rights understanding, or just like in the example above unprepared defendant or plaintiff. No matter what the reason may be, the fact stays the same, it is hard for a mediator to remain neutral and fair at the same time. Our natural human instincts drive us to help the person in need and to make judgments of the people we think are wrong.

The ADR offices have released the “Model Standards of Conduct for Mediators” back in 1992. To sum it up, this document tells you how you should behave as a mediator in any mediation. It says things like, “…a mediator cannot personally ensure that each party has made a fully informed choice…” and “…a quality process requires a commitment by the mediator to diligence and procedural fairness…” How can one ensure fairness if one cannot ensure a fully informed choice? Furthermore, this document does not even scratch the surface on the different styles of mediation. The standards do not take into consideration that we are all different and we will all mediate differently. Some of us may be more evaluative and other more facilitative.

The four different styles of mediations are somewhat forgotten by the rules written for mediators. In the facilitative or “pure” mediation, as some of us call it, the focus is on assisting parties to negotiate by restoring communication and helping create options for resolution while avoiding coercing of the parties to arrive at a settlement. The evaluative mediation also allows the parties to test the reality of their predicted outcomes and often uses meditative and facilitative approaches while the neutral, the mediator, may share his/her evaluation of each party’s case to encourage settlement. These two approaches are further broken-down to broad and narrow styles. Narrow will focus only on the legal issues and will not go below the line, while broad will try to settle the case by not only using tangible means, but also intangible. For instance, a fifty percent money settlement and an apology may be a more satisfactory resolution than a simple distributive bargaining approach. Now whether that is a fair and an ethical approach, that is for you to decide.

It is imperitive to realize the thinness of the line between fairness and ethics. It might be ethical for the mediator to allow the parties to write their own contract, but it would not be fair to one of the parties if the other is putting a clause in the contract that you know will backfire in the future. Every case that we do must be considered individually and with great attention to the details, whether you are a facilitative or an evaluative mediator .

As of January 1, 2003 the ADR Rules for Civil Case were amended to provide Rules of Conduct for Mediators in Court-Connected Mediation Programs for civil Cases. These rules discuss things like, purposes and function, application, confidentiality, imparity, conflict of interest, disclosure and withdrawal, competence, and quality of the mediation process. These rules are a very big step forward, because of the way that they are written; they are written as guidelines in a very simple and non-commending manner. The quality of mediation process says the following, “…requires diligence in advancing the mediation in a timely manner; procedural fairness allowing each party to participate and make un-coerced decisions…” and “… allows for the mediation to suggest settlement options and assist in preparing an agreement as determined by the parties.” All of that is written under the same paragraph, thus emphasizing different styles of mediation. It allows, but it does not obligate and it requires procedural fairness while letting each party participate.

Seeing all these rules, ethics, guidelines, and regulations makes me wonder if one of these days we will have this as the law of conduct for mediators. I just hope that if and when it does happen, the people who will participate in writing these laws will take in to consideration all the ifs and buts and will realize that mediation is a voluntary process for two people to come together to an agreement, using a mediator who assists in the identification of issues, generates options, and facilitates a mutually acceptable agreement.

Biography


Alex Dukhovny - Is an owner and operator of two mediation companies, Right Triangle Mediation and American Mediation of Los Angeles County. Combined, the two companies have assisted hundreds of individuals in resolving their disputes professionally and efficiently.

 



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Website: www.rtmediation.com

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