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<xTITLE>Adversarial Ethics and the Responsibilities of Mediation Associations </xTITLE>

Adversarial Ethics and the Responsibilities of Mediation Associations

by Julian Granka Ferguson
February 2021 Julian Granka Ferguson

Adversarial ethics, or the ethics of competition, are an unfortunately overlooked field of moral philosophy. However, they are very important for any individual, business, or regulatory body to understand. This article is going to discuss why we need to acknowledge the competitive nature of mediation professionals, and consider what mediation associations and regulatory bodies ought to do in order to fulfill their role in creating an environment for healthy competition. 

Adversarial Ethics

The idea of competition, which essentially strives to produce win-lose scenarios, and the ethics related to said competition may seem a very distant concern for mediators. After all, mediation is a cooperative and collaborative process where there is an aim to achieve a win-win solution. However, while we may not like to admit it, outside of the mediation setting the environment is very different. Mediators are quite often entrepreneurs who run their own business, and it would be naive to say we aren't competing with each other. The ethics of competition, or adversarial ethics, are therefore an important principle for mediators to understand, particularly the regulatory bodies. Given competitors are rarely good at monitoring their own behavior, it is the responsibility of mediation associations or regulatory bodies to guide their behavior in a positive way; but I’ll elaborate on that shortly.

Adversarial ethics is essentially the ethics of competition. The idea of ethics in competition may appear counterintuitive since adversarial relationships tend to ignore most of our ethical intuitions. The difference is every day ethical relationships, like helping an old lady across the street, focus on cooperation and collaboration, but in competition something that is explicitly prohibited in everyday life, like punching someone in the face, is actively supported in certain situations, like boxing. 

According to Joseph Heath, the ethical and healthy way to engage in competition is one that creates positive externalities; meaning it creates benefits for those outside of the competition. For example, two businesses competing to make a better product for instance will continually improve the situation for those who need and purchase the product. Assuming certain conditions are met, that competition leads to the best possible product. 

Ethical competition can also benefit the people involved, again, assuming certain conditions are met. If two people are training to race each other, they will both become healthier as a result. Adversarial ethics are thus the guideposts for the conditions that allow for healthy competition. 

The conditions that must be met for competition to be healthy and provide positive externalities are four fold: constrained competitiveness, no cheating, no gaming the rules, and taking the high road. For simplicity, these conditions will be explained using the most classic example of competition: sports.

  1. Constrained Competitiveness: “A good sport is one who maintains a zealously adversarial stance within the designated context of the game, but then drops this orientation and adopts a more cooperative demeanour when the game is over.” 
  2. No Cheating: “A good sport is one that respects the rules of the competition, even when the referee isn’t looking, or the chances of detection are slight.” 
  3. No Gaming: “Gaming the rules involves taking actions that are technically not prohibited, but are not intended to be permissible strategies. Such actions violate the spirit, rather than the letter of the rules, and are prohibited by the ideal of sportsmanship…They involve actions that would be against the rules, but for some oversight.” 
  4. Taking the High Road: “A good sport is one who considers respect for the principles of good sportsmanship to be more important than winning. Faced with an opponent who has decided to ‘play dirty,’ the good sport does not take this as license to start playing dirty herself.” 

These rules, and specific actions depending on the type of competition, are guided by a sense of what the overall “point” of the competition is, what the beneficial consequences of the activity are, and how the competition serves to generate them. For example, the “point” of mediation is to assist in settling conflicts. A mediator who, when faced with competition from another mediator, wants a matter to settle in favour of a regular client so they can continue to get business, is not following the “point” of mediation, nor do they understand how the competition can generate positive consequences by motivating mediators to get better at their craft to create solutions that benefit both parties. They are not creating positive externalities, and are thus not promoting healthy competition. 

Associations and Regulatory Bodies 

Typically, competitors do not regulate themselves particularly well. While the “point” of the competition is ideally clear to everyone involved, it is well known that is not the case in many instances. As a result, it is important to have regulatory bodies or professional associations that set the rules that remember the “point,” and keep it as the primary goal of the profession; that is the role of regulatory bodies and professional organizations. They can set and enforce the rules and let people know what needs to be done to ensure a healthy competition. For instance, in the pharmaceutical realm, competition alone does not lead to positive externalities. There are too many examples where pharmaceutical companies have lied about their product in order to make money and beat their competition at the expense of their clients. For that reason, regulators like Health Canada or the FDA have set rules that pharmaceutical companies must follow to ensure the competition is healthy, and if they don't there are consequences (in principle). From the perspective of Adversarial Ethics, the role of mediation associations or regulatory bodies is the same: to set and enforce the rules that guide their members towards behavior that creates the most positive externalities, and remembers the “point” of mediation. 

Mediation, however, is typically governed by associations or professional organizations rather than regulatory bodies, and the difference is important to recognize. Professional organizations serve the interest of their members. They create networking opportunities, publish information of interest to members, conduct research, and stage conferences, seminars and workshops. Regulatory bodies on the other hand are meant to protect the public interest. They set requirements for individuals to enter the profession and how to practice the profession. They set up and maintain disciplinary processes and evaluate the ongoing competence of members. 

Naturally, these differences can create conflict in regards to how the rules are actually defined, embedded into the profession, and enforced. Where a true regulatory body is held accountable by the government, and exists to protect the public from incompetent or unethical practitioners who may abuse their professional position, associations answer to their members. A regulatory body for instance will take no qualms at disciplining a member for conducting their business in an unorthodox and untested way, whereas an association may turn a blind eye if the behavior was not deemed significantly damaging to the other members’ reputations.

That is not an enshrined reality; the distinction between an association and a regulatory body is not always clear, and there is often overlap. For example, in Ontario, there is the Alternative Dispute Resolution Institute of Ontario (ADRIO), which is an Affiliate of the Alternative Dispute Resolution Institute of Canada (ADRIC), which has codes of conduct and ethics meant to guide their respective members and have requirements for those wishing to hold their professional designation. However, the difference is that whether or not associations embrace the role and responsibility of promoting healthy competition by enforcing the rules they set depends less on the pressure placed on regulatory bodies by the government and legislation, but on those in power. After all, they still technically serve the interest of their members, rather than the public. 

However, associations are pivotal in enforcing healthy competition amongst their members, and ensuring ethical competition. While the rules and focus of associations and regulatory bodies may be different by definition, from the ethical perspective they are both responsible for the behavior of their members because they are the ones that set down the rules. Whether associations represent their members or the public, they are ethically obligated to instil a culture and practice that remembers the “point” of mediation, and produces positive externalities for those who mediator’s help, directly and indirectly.  If the profession of mediation is truly going to thrive, there is a responsibility of those in charge to ensure that the behavior of their members is conducive to ensuring health competition. 



ENDNOTES

Heath, J. (2007). An Adversarial Ethic for Business: or When Sun-Tzu Met the Stakeholder. Journal of Business Ethics. 72, pp. 359-374. 

Biography


Julian G. Ferguson, MA, MSc, Q.Med. is designated with his Q.Med from the ADR Institute of Ontario and Canada. He is an affiliate with A Place for Mediation, one of Toronto's original mediation firms, and serves on ADRIC’s Ethics and Professional Practice Committee.

Julian focuses on mediating in the areas of health care and emerging technologies. His career began in bioethics and he mediates throughout the health care spectrum on conflicts related to informed consent, patient rights, and many others. He is also drawn to innovation and resolves conflicts that stem from emerging technologies, like privacy breaches, and the entrepreneurial spirit that comes with them, like partnership and workplace disputes.



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