Ethical Guidelines for Disputants? Why Not?


by Lyn Kendrick

The past quarter century has witnessed phenomenal growth in the mediation field in North America and with it the development of ethical standards for mediators. These standards safeguard the mediation process and support the parties' efforts towards fair and equitable settlements.

But what of ethical standards for the disputants themselves? They expect ethical conduct from the mediator. Should the mediator offer guidelines for the parties in dispute? Perhaps the parties themselves do not realize how crucial high ethical standards are to the resolution of their own disputes. Particularly in community disputes, when parties are not represented by counsel, I have observed that disputants sometimes misrepresent the facts, assuming it is to their advantage not to be forthcoming.

In this paper I will explore the need to develop ethical guidelines to assist parties during mediations. If the parties understand the ethical underpinnings that bolster trust and cooperation, and adopt such guidelines at the beginning of a session, I believe they will help strengthen the mediation process.

Although mediator standards have evolved over the past twenty years, I am unaware of ethical guidelines for disputants in mediations. If disputants are not professionals with their own ethical standards, it is unlikely that they have considered the nuances of ethics within the mediation process. It is my contention that specific ethical standards should be developed for such participants. These standards could be suggested by the mediator(s) along with the groundrules relating to courtesy and respect at the beginning of a session.

The following guidelines could be added to those usually outlined to parties, simply to highlight ethical procedures:

1) Put forth your best effort to communicate, and if possible, reach an agreement.
2) Be willing to listen to the other side, as you expect them to listen to you.
3) Give honest, complete answers from your perspective.

Truthfulness is one of the most basic elements in developing trust among parties. Although one's perspective of an incident or dispute might be completely different from the other person's perspective, deception creates mistrust. Mediators who have witnessed lying during a mediation can attest that it usually sets back the mediation process and leads to impasse. Sissela Bok writes in her book, Lying:

"When we undertake to deceive others intentionally, we communicate messages meant to mislead them, meant to make them believe what we ourselves do not believe. We can do so through gesture, through disguise, by means of action or inaction, even through silence.... I shall define as a lie any intentionally deceptive message which is stated."1

Disputants should realize that their position becomes more complicated and untenable if they intentionally lie during a mediation. It makes the mediator's task of neutrality more difficult if he or she perceives a party is lying. As William Ury states in Getting Past No:

"The hardest tactics to recognize are lies. Your opponent is trying his best to persuade you that he is telling you the truth when he isn't. You need to watch for mismatch -- between his words, on the one hand, and his previous words or actions, facial expressions, body language, and tone of voice, on the other. Whereas a liar can manipulate his words, he cannot easily control the anxiety that raises his voice pitch. ... You need to look for multiple clues."2

While attorneys may justify some misstatements as mere posturing, they should encourage their clients to be as forthcoming as possible during a mediation, to contribute toward a reasonable settlement. Mediation helps parties move toward future steps. Community mediators also should encourage disputants, in caucuses if necessary, to think clearly about the specifics of the case. Misrepresenting past incidents will do little to help parties arrive at an acceptable agreement for the future.

Thinking back on a community mediation in which I participated, this guideline against lying would have helped the disputants resolve their disagreement more quickly. The situation involved a young woman who had filed a complaint, resulting in a temporary restraining order against her neighbor, an older man who repaired cars in his driveway. She complained of the noise and mess he created, but his repairs on his property were entirely legal. As the mediation proceeded, the man vehemently denied many of the accusa- tions his neighbor claimed, such as swearing and making passes at her. Her descriptions began to sound fabricated. When the mediators requested a caucus with the young woman, she broke down, complaining that she was hoping she could "get rid of" her neighbor by levying these accusations at him. She was indeed troubled by his practice of repairing cars in his driveway, and she admitted he was generally gruff, but not rude or prurient toward her. After she agreed to listen to his perspective and try to put herself in his shoes, the mediation finally resulted in some healthy dialogue between them and a somewhat amicable conclusion. The second underpinning for ethical guidelines relates to seeing from another's perspective. In his book How Good People Make Tough Choices, Rushworth Kidder summarizes what he calls "care-based" thinking, illustrated by the Golden Rule: "Do to others what you would like them to do to you." As Kidder states, "In other words, it asks you to test your actions by putting yourself in another's shoes and imagining how it would feel if you were the recipient, rather than the perpetrator, of your actions."3 He goes on to state that the Golden Rule "is in fact so universal that it appears at the center of every one of the world's great religious teachings."4

This rule could also be included as a guideline for disputants. Although at the beginning of a heated mediation, it might appear futile to ask for empathy, this approach can be linked to Fisher and Ury's "interest-based approach" to negotiation. In their book Getting to Yes, they state:

"The ability to see the situation as the other side sees it, as difficult as it may be, is one of the most important skills a negotiator can possess. It is not enough to know that they see things differently. If you want to influence them, you also need to understand empathetically the power of their point of view and to feel the emotional force with which they believe in it."5

This ability to see and feel the other side's point of view is just as crucial for the disputants as for the mediator.

During a community mediation involving a temporary restraining order against a neighbor (we'll call him Joe), the disputant who requested the order (Tom) was highly suspicious of Joe's motivation. Tom had recently moved into this neighborhood and was especially protective of his ill wife. Joe was a long-time resident and told Tom that he had helped protect Tom's house when he saw some young men poking around the backyard. Joe finally confided that he was on parole from prison, and that the TRO was definitely not helpful to Joe's efforts to stay out of jail. Once Tom was able to put himself in Joe's shoes, he appreciated his willingness to look out for Joe and his wife. The mediation ended with some degree of mutual respect and cooperation.

A third guideline to avoid deception is dealing in good faith, or putting forth one's best effort. This element should be made clear to disputants who are new to mediation. Especially if they are not represented by counsel, they should understand that being uncooperative or deceptive is counterproductive to the process. In other words, it will not get them satisfactory results.

Other forms of deception can derail a mediation entirely. A commercial mediator handled a case involving a plaintiff injured in a shopping center. More than an hour into the session, during the caucus with the defendants, the mediator asked if they had any more information to divulge. The attorney pulled out a video tape made by the shopping center's security office, showing the plaintiff purposely faking the injury. It was a proverbial "smoking gun" piece of evidence, which they were planning to show at trial the next month. The only reason the defendants had agreed to attend the mediation was because of court requirements. The mediator immediately withdrew from the session, and refunded all fees to the parties. Because of his ethical obligations of confidentiality, he was not at liberty to tell the plaintiff why he was canceling the session. This example of not negotiating in good faith was difficult for the mediator to anticipate, and it clearly dismantled the session.

The advantage of giving ethical guidelines to participants at the beginning of a mediation, especially in a community setting, would be significant. The basic groundrules already set the tone for courtesy and respect:

1) Do not interrupt when the other person is talking.
2) Show respect in words and gestures.

The following guidelines could be added simply to highlight ethical procedures:
3) Put forth your best effort to communicate, and if possible, reach an agreement.
4) Be willing to listen to the other side, as you expect them to listen to you.
5) Give honest, complete answers from your perspective.

As illustrated in this paper, if the above guidelines were briefly mentioned at the beginning of mediations, they could help community and even commercial mediators educate disputants in ethical problem-solving. The participants themselves would recognize their vital role in setting a tone of good faith through interest- and care-based negotiations. The results of the mediations could be greater trust and more solid agreements.

The American poet E.E. Cummings wrote about the sculptor Gaston Lachaise in the 1920's. His description might also describe a mediator's state of mind relating to ethical processes. He wrote that Lachaise exhibited "intelligence functioning at intuitional velocity."6 Frequently the mediator must help the parties reframe the dispute so they can begin to see a solution. Although this is not precisely an ethical element, it is worth noting. Ury spells this out in Getting Past No:

"The opportunity always exists to reframe the issue from the past to the future, from who was wrong to what can be done about the problem.... When your opponent criticizes you for a past incident, don't miss the opportunity to ask 'How do we make sure it never happens again?' Reframe the blame as joint responsibility for tackling the problem."7

Reframing the issues, or the blame, helps direct the parties to visualize a solution in a new way, thereby moving beyond the dispute itself. Thus, the process and the momentum of working in trust and cooperation together should bring successful results.

In the early part of the twentieth century an English jurist, John Fletcher Moulton discussed the "three great domains of human action" as positive law, free choice and manners. "The domain of law, he observed, is characterized by 'laws binding upon us which must be obeyed.' He might have called it obedience to the enforceable."8 He defined "manners" or ethics as "obedience to the unenforceable." He wrote further, "The real greatness of a nation, its true civilization, is measured by the extent of this land of obedience to the unenforceable."9

Although ethical guidelines for mediation participants might be unenforceable, I believe they would strengthen the negotiations and help result in win-win solutions. The mediator(s) could "enforce" the guidelines along with the other groundrules, by reminding the parties that they have agreed to follow them. Therein the process of self-determination also becomes one of self-monitoring. For community mediations in particular, the results in terms of empowerment and satisfying results could be especially promising.

FOOTNOTES

1. Sissela Bok, Lying: Moral Choice in Public and Private Life (New York: Pantheon Books, 1978), p. 13.

2. William Ury, Getting Past No (New York: Bantam Books, 1991), p. 25.

3. Rushworth M. Kidder, How Good People Make Tough Choices (New York: William Morrow and Co., 1995), p. 25.

4. Ibid.

5. Roger Fisher and William Ury, Getting to Yes (New York: Penguin Books,1983), p. 23.

6. Kidder, How Good People Make Tough Choices, p. 180.

7. Ury, Getting Past No, pp. 75-76.

8. Kidder, How Good People Make Tough Choices, p. 66.

9. Ibid.



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Biography




Lyn Kendrick is a freelance mediator in the east bay of San Francisco, specializing in workplace disputes and family issues. She also works as a facilitator, ethics trainer and team building consultant for non profit organizations. She has a graduate certificate in dispute resolution from Pepperdine University.

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