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<xTITLE>Mediation Ethics - an interview with Ellen Waldman</xTITLE>

Mediation Ethics - an interview with Ellen Waldman

by Henneke Brink
June 2021

This interview was previously published in the Dutch ‘Tijdschrift Conflicthantering.'

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Mediation Ethics - an interview with Ellen Waldman

It has been exactly ten years since Ellen Waldman’s masterpiece ‘Mediation Ethics’ was first published. It was aptly described as ‘a groundbreaking text that offers conflict resolution professionals a much-needed resource for traversing the often disorienting landscape of ethical decision making.’ In the book, Waldman presents a range of familiar ethical dilemmas to a panel of experienced, sharp thinkers, and strings the divergent answers together in insightful manner. In this interview she elaborates on some of the book’s main themes, reflects on the impact of the Corona pandemic and talks about her current interests. 

In your book you describe mediation's three underlying values: disputants' autonomy; procedural fairness and substantive fairness or a 'good-enough outcome'. You write that these principles are likely to be at tension if a case requires ethical decision making. Could you elaborate on this idea? 

When I included the notion of substantive fairness – the ‘good enough outcome’ – as one of mediation’s three underlying values, I did so with a fair amount of trepidation. In the United States, the question of whether mediators should be at all concerned with the substantive outcome of the agreements they help facilitate was mired in controversy. The Model Standards, the most well-known and widely-cited ethics code for American mediators, was notably silent on the question, and only a few state codes waded into the area. In part, I listed substantive fairness as a pillar of mediation ethics because in certain specialized areas - family and divorce for example - it had emerged as an important consideration. And, I had an intuition that even outside of these specialized areas, a great number of mediators were, in fact, concerned and committed to the idea that the agreements they help forge should meet basic standards of equity. 

Pin-pointing where these values come into tension is easy. Let us focus on the twin values of promoting disputant autonomy and ensuring substantive fairness. At a bare minimum, promoting disputant autonomy is thought to entail allowing disputants to chart their own course at the mediation table, to pursue outcomes that make sense to them and accord with their goals, preferences and priorities. The corollary to this is that external norms - laws, rules, and other societal restrictions - should matter less than the disputants’ own values. However, what if a disputant appears ill-informed regarding his or her own legal entitlements? What if her behavior in mediation is so passive and submissive that she appears ready to settle for an outcome that is so disadvantageous that it flies in the face of all generally accepted concepts of fairness? 

In the book, I posit a divorce mediation occurring in Alabama. The husband is aggressively seeking 75 percent of the marital assets on the grounds that the wife wants the divorce and he was the primary bread-winner throughout the marriage. The wife is desperate to leave the marriage and appears ready to take the 25 percent, although such a division will leave her in a precarious spot financially. Legislative and judicial law would award the wife at least half the marital estate, but the wife has not consulted an attorney and is not inclined to do so.

At a surface level, respect for disputant autonomy appears to counsel in favor of allowing the wife to settle at a 25 percent share. She wants to leave the marriage and a reduction of her share of the wealth generated during the marriage is the price she is willing to pay. Mediation’s emphasis on party autonomy makes clear that her goals, values and preferences must be paramount. But what about substantive fairness? Legal norms, to some degree, represent societal notions of what is equitable and just. Spousal and child support laws were passed by state legislatures precisely because the post-divorce “feminization of poverty” was deemed unacceptable. Women who exited the market, raised children and supported the family with domestic labor, should not, it was held, be impoverished once the marriage ends and they find themselves excluded from the labor market.

In this case - as in so many others - the impulse to respect party autonomy by helping the wife conclude the mediation on terms she deems acceptable comes into tension with the desire to ensure that resulting mediation agreements meet basic standards of fairness.  

You note that it is a mediator's responsibility to assess whether a party who appears vulnerable will be able to protect her or his personal interests. However, I imagine a mediator with a legal background is likely to have a different understanding of what it takes to secure 'informed consent' than a mediator with a degree in psychology. How do you view the relevance of the mediator’s background or substantive knowledge concerning the issues at hand? 

Because the mediation role includes professionals working in such a wide variety of contexts, the question of mediator background or training is complex. It is impossible to say, given the diverse setting in which mediators work, that one uniform knowledge base is required. Clearly, mediators who regularly provide evaluations in complex legal disputes should be lawyers with some substantive knowledge in the relevant legal topic. Mediators working with high conflict couples in child custody cases should likely have some basic psychological competency in child development and the particular dynamics of families in transition. What is most significant, in my view, is the clarity with which the mediator communicates to proposed clients what he or she is competent to deliver. Mediators should be forthright about their substantive expertise - or lack thereof - and particular training for the task at hand. It is unlikely that the mediation community will arrive at agreement as to how much or little substantive knowledge is required for a mediator to capably handle a case. What is most important is that procuring clients (or courts and agencies) know what the mediator is trained to accomplish, so that an informed decision can be made as to whether the right personnel decision has been made, given the complexities and challenges of a particular case. 

You draw an interesting distinction between norm-generating, norm-educating and norm-advocating approaches that a mediator can take, depending on the circumstances and interests at stake in the case at hand. Can you elaborate on that distinction? 

When I looked out into the mediation landscape in the mid-1990’s, I didn’t see terrain divided into settlors or transformers, or evaluators and facilitators. The practices I saw divided themselves into a different typology, a set of categories organized based on the mediator’s relationship to social norms.   

In the schema I described in my book, mediation models follow one of three tracks. The first of these, norm-generating mediation, most closely approximates the community mediation models that were proliferating in the United States. In that process, the only norms relevant to the process are those the parties identify and adopt. Societal norms, such as those embodied in statutory and common law, professional guidelines, or majority practice, if introduced, are kept very much in the background of discussion. It is thought that too much foregrounding of societal norms will impede party self-determination and creativity. The mediator instead, invites the parties to articulate and elaborate their own personal norms of fairness that will be used to undergird the agreements they reach. 

I suggested that norm-generating mediation was particularly appropriate when the substantive terms of the outcome matter less than the goals of enhancing party autonomy and improving relationships. These situations usually arise where the matter in question is so private - and of such limited public import - that society has not seen it fit to opine or regulate in the area. Secondarily, it may be that a publicly developed norm exists, but in the dispute in question, the competing goals of preserving harmony and allowing individual parties to generate their own solutions outweigh whatever harm is creating in disregarding the norm. The example I gave in an early article laying out these ideas was a neighbor-neighbor dispute over views, clothes-lines and laundry. In most instances, society has not seen fit to regulate clothesline placement; neither laws nor administrative mandates exist setting out exactly how a property-owner’s right to dry clothes in the summer air should be balanced against another owner’s interest in enjoy pristine, garment-free views. Even if such a norm did exist, in a local zoning ordinance for example, the goal of preserving harmony between these neighbors would outweigh whatever harms are created by deviating from this socially-prescribed course of action. 

The second form I describe, norm-educating mediation, treats norms differently. According to this model, mediators view social norms as related to and important in helping parties achieve self-determining outcomes. In order to make fully-informed judgments at the mediation table, parties need to understand their alternatives to settlement, including what would happen if their dispute ended up in a different forum. Legal norms help parties understand what might happen if their dispute proceeds to litigation. Norms apart from legal rules are also perceived to be relevant. Divorcing parents might benefit from psychological data evaluating the impact of alternative custody arrangements, and special education families seeking additional resources from school districts might obtain a broader perspective on their claims if they know what other similarly situated children have received with similar conditions and diagnoses. Critically, in this model, mediators do not insist parties adopt the social or legal norms presented. Rather they offer the information to enrich parties’ deliberation and augment the quality of their decision-making.  

In my view, norm-educating mediation is most appropriate where two conditions are met. First, a social norm exists that is clear, on point and important in that it serves a protective function. Second, although a compelling social norm exists, the parties’ interests in settling on their own terms outweigh whatever societal goal might be achieved by its forced application. For example, take the special education example discussed above. Legislation and case-law delineate resources that school districts must make available to students with cognitive and affective disabilities. These rules are specific and protective; they are designed to ensure that “differently abled” children are not discriminated against or left behind in a district’s effort to streamline classes, enhance efficiencies and conserve resources. Parents should know about these entitlements. They cannot make truly informed decisions without knowing what resources they would likely be afforded were they facing a judge or arbitrator. On the other hand, if the parents are able to negotiate an arrangement with their child’s school that better meets their particular child’s needs, even if it deviates from what the applicable legal norm would dictate, the mediator should encourage that bespoke agreement.

The last category, norm-advocating mediation, remains controversial. Some might say it is not mediation at all. But, I saw - and continue to see - too much of the practice to embrace that criticism. In norm-advocating mediation, the mediator works to not only apprise the parties of relevant social norms, but to ensure that the norms achieve some measure of expression in the parties’ agreement. Mediators in this model assume that social or legal norms contain important judgments about how we should treat each other and the community at large and encourage incorporation of those judgments in the individually tailored agreements the parties craft.

If the mediator encourages the adoption of existing social norms as the basis of the parties’ settlement, one might ask how such a process could be labeled mediation at all. Isn’t mediation a process, at its base, where the parties decide if and how they will conclude their dispute? The reason why norm-advocating mediation is not an oxymoron, however, can be traced to the open-textured nature of many social norms. For example, post-divorce custody determinations must be made “in the best interests of the child.” But, reasonable people can differ - and do - as to how a child’s interests are best served. Equal protection law requires that men and women “working under similar conditions” in jobs requiring “equivalent skills, effort and responsibility” must be paid equally. But, is a female administrative assistant whose job requires her to master newly acquired videoconferencing technology, working under similar conditions and exercising equivalent skills and responsibility as the male administrative assistant responsible for learning recent iterations of the firm’s financial accounting software? Again, reasonable people can differ and a mediation that begins with the proposition of equal pay for equal work can then proceed to consider and determine how that concept can most equitably be applied in the dispute at hand. 

Norm-advocating mediation makes sense where the parties’ dispute implicates important societal concerns; concerns that are so central to our common life together that their recognition and expression outweighs the parties’ interests in forging an entirely idiosyncratic approach to the problem. Were a government to set limits on carbon emissions as part of an initiative to combat climate-change, those limits should be the starting point for discussion in mediations between industry and environmental advocates. Case law and legislative pronouncements setting out the rights of competent patients and their families to refuse life-sustaining treatment at the end of life should frame conversations in the emerging field of bioethics mediation. Where the social norm at issue is critical to preserving common resources, protecting structurally disadvantaged groups or establishing baseline levels of humane treatment, norm-advocating mediation has a role to play in allowing parties to work through how those norms should be applied in their context of their own situation.  

In the Netherlands we have a system of disciplinary procedures for mediators registered with the Dutch federation of mediators, the MfN.  This system produces a slowly expanding body of decisions, based on alleged violations of the MfN Code of Conduct or Mediation Rules. Given the complexity of ethical dilemmas: do you see a risk that these rulings might have a stifling effect on the flexibility needed to respond to the needs in a particular case? 

In the United States, most state court-connected mediation programs have adopted an ethical code or professional set of standards applicable to mediators operating within their auspices. A number of these programs also have grievance procedures similar to what you describe in the Netherlands. I worry less about excessive rigidity or ethics calcification here in the U.S. because, with our fifty-state system, no one ethics opinion is binding. A New York mediator would do well to hew to the guidelines set out in a New York ethics opinion, but may pay considerably less attention to an opinion issuing out of Georgia or Texas. Sometimes opinions from different states will align, but other times there are discrete differences. For example, in Florida it is permissible for a mediator to function dually as a facilitator as well as a notary in the same dispute. In New York, the ethics advisory committee said no. So, again, I worry less about the emerging body of ethics literature pinning us in place and more about whether sufficient resources exist which consistently provide useful guidance for the aspiring mediator to know what to do when ethical dilemmas arise. 

While the world is struggling to get a grip on the Covid-pandemic, many mediators have taken their practice online and the development of instruments to facilitate ODR has taken a flight. What do you see as the most pertinent ethical issues that come with this development? 

I think there are a lot of issues that arise as mediators have migrated to Zoom, Microsoft Teams and other online practices. How do we create rapport and build trust in virtual spaces, deprived of tools we have come to rely on when we are face to face? We can’t put a calming hand on a troubled party’s arm, shift our gaze to signal another’s turn to talk, offer coffee or a sweet during a particularly tense moment, or rely on the equalizing comradery of a round table setting.

In terms of ethics, there are three issues that come immediately to mind. First; competence. Traditionally, we think the mediator’s obligations of competence relate principally to process expertise, and, in some contexts, subject-matter knowledge or experience. But, when conducting an online mediation, suddenly mastery of the computer hardware and software is critical. The mediator must be able to ensure that she is positioned properly, backlit appropriately, supported by a good microphone and adequate bandwidth, adept with tools that control entry and exit from break-out rooms and cognizant of what is being recorded and where those recordings are being stored. In sum, competence now means something different than it once did. 

This leads directly into a second ethics issue that has taken on new dimensions: confidentiality. Some virtual platforms, Zoom for example, can be preprogrammed to record all discussions taking place within a designated meeting. Mediators must be quite deliberate in terms of how that capability is treated and ensure that any recordings be considered confidential, unless the parties expressly declare otherwise. The exchange of confidential documents online also creates confidentiality concerns. Can the mediator assure the cyber-security of the platform being used? If the documents are being stored in a virtual “cloud,” linked with the mediator’s platform, are those documents adequately protected from hackers or others who would create mayhem? 

Lastly, I would argue that online mediation throws into high relief some of the pre-conditions for conducting an ethical mediation, and the challenges mediators can face in ensuring those pre-conditions are met. For example, mediators need to ensure that parties have capacity: that they understand the process and their role in it, the issues at stake, and can appreciate the import of the decisions they are making. In the Model Standards of Conduct applicable in the United States, if mediators have questions about a parties’ capacity to participate in the process or understand the options on the table, the mediator is counseled to “explore the circumstances, potential accommodations, modifications or adjustments that would make possible the party’s capacity to comprehend, participate and exercise self-determination.” It is hard, in the best of circumstances, to always remain alert to parties’ wavering understanding of what is on offer, not to mention to the subtle signs of agitation or confusion. Add in the problems of inconstant bandwidth, flickering video and distorted audio and what may begin as simply a challenge for the mediator in terms of “managing the room” can devolve into serious ethics issues. Actually, I think the longer we mediate online, the more ethics issues will become salient and demand our attention.

Ten years have past since Mediation Ethics first appeared. What do you see as the main trends in the development of the mediation field and profession in the last decade, in the US and/or globally? What kind of bearing (if any) do you think these developments have on the ethical themes you describe in your book? 

In the U.S., the evaluative style of mediation is ever more prevalent. In the commercial arena, many mediators are quick to issue a “mediators proposal” and view their primary “value added” as opining on the legal merits and tamping down client enthusiasm for “their day in court.” Research indicates that in certain parts of the country, the use of joint session is in decline. In these areas, mediators view attorney opening statements as so destructive of any possibility of forging a collegial atmosphere, that they choose to just skip it. Instead they chose to separate the parties for an ex parte mediation, and day of shuttle diplomacy ensues. In terms of establishing a market niche, mediators increasingly market their services to, and establish ensuring relationships with, law firms and insurance companies. It is easy for the actual parties - the people who have suffered harm or who find themselves hailed into court for reasons they don’t fully understand - to get lost in the shuffle. These trends have generated much hand-wringing among academics and mediation theorists, but I don’t see much evidence of reversal. 

As evaluative practices become dominant in the commercial mediation industry, and as mediators become comfortable providing proposals for settlement ever earlier in the process, the primacy of party autonomy dims. Originally, mediation’s goal was to elevate and amplify party voice. The idea was to ensure that any agreement reached truly represented the parties’ underlying needs and interests. As mediation has become institutionalized and embedded in the adversary process, we may have created a more efficient, cheaper route toward settlement, but we may not be doing so through a process that is truly party-centric or empowering in the way our ethics codes envision.  

Lastly; we'd be very curious to learn what you are currently interested in or focused on in your work. And are there perhaps interesting findings or issues that you came across in your research that you would like to share?  

I have, for the last few years, become increasingly concerned about unrepresented litigants and how many of them end up in mediation. I wonder, how well does our vision of fully autonomous, self-determining parties fit with the vast tide of litigants who find themselves in mediation with insufficient resources to hire a lawyer? Our theoretical models just assume that parties will have access to the legal information they need to be able to weigh the offer on the table with what they are likely to receive in court. Mediators can maintain their impartiality by steering clear of any discussion of the legal merits. But what of the unrepresented parties who have no information about how a court will view their situation? How can they make informed judgments in mediation?

In a recent piece, I examined the burgeoning growth of artificial intelligence and machine learning in the legal system; how these new technologies have been leveraged by global companies and law firms for competitive advantage, and how these same technologies might perhaps be used to inform and assist unrepresented parties whose cases are diverted into mediation. 

It is hard to open a newspaper without reading about the vast chasm that separates the haves from the have-nots. This is especially true in the United States where decades of government policies have led to dramatic inequalities of wealth and income. I worry about where mediation fits in a winner-take-all economy. As I have long argued: mediators must be held to have some responsibility for preventing unconscionable outcomes in the disputes they preside over. Almost since its inception in the United States, social justice critics have argued that mediation will constitute second- hand justice for traditionally marginalized groups who have limited access to lawyers, as well as limited access to courts. I do not accept that criticism in its entirety. But, I think the critique is useful in terms of reminding us that power and resources matter, and that if mediation is to live up to its promise, we need to carefully scrutinize not simply the fairness of our procedures, but the eventual outcomes they forge. 

Biography


Henneke Brink is a Dutch lawyer and mediator, and owner of Hofstad Mediation. She does research and writes about topics concerning the relation between mediation and (inter)national formal justice systems.



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