Last April, the U.S. Justice Department implemented a new “zero-tolerance” policy for the detention and arrest of undocumented immigrants. Individuals seeking asylum from persecution or risk of persecution in their country of origin are among those within the scope of this controversial plan. The aspect of the policy that has ignited the greatest public outcry was the decision to physically separate and then sequester migrant children away from their parents. At the close of June 2018, it was estimated that roughly 2,300 immigrant families had been torn apart. And by the way, age does not matter. The affected children range from babies to toddlers and adolescents. Millions of viewers are watching this drama play out in real time on cable news networks around the world.
The present situation raises several urgent questions that should concern the alternative dispute resolution community. Is there a legitimate role for trained mediators to assist in facilitating the reunification and re-settlement of estranged parents and children? If the answer is “yes,” then what criteria should be used to select prospective mediators to undertake such an endeavor? Although these questions arise in the context of a rather unique set of circumstances, perhaps now is the time to re-examine how the mediation profession defines mediator competency.
The Present Model
A competent mediator must approach every mediation and each party with neutrality, emotional detachment, and objectivity. She is required to act in a manner that is free of any bias or prejudice. Mediators must avoid actual conflicts of interest and the appearance of conflicts. Party autonomy, self-determination, and confidentiality are also among the core principles set forth under the American model.
But wait just a minute. Why isn’t the profession equally concerned about the moral character, authenticity, and cultural awareness of its mediators? Should morality matter? Furthermore, if mediation is intended to serve as a meaningful alternative to litigation then shouldn’t a mediator’s sense of Justice serve as a relevant consideration?
Moral Discourse in Mediation
The dominant influence of lawyers and retired judges over the field of mediation cannot be overstated. American lawyers are classically trained to advance or defend the legal and pecuniary interests of their clients at all cost. With that said, it is no secret that money is usually one of the central drivers of discussion between mediators, disputants, and their legal representatives. There are, however, circumstances where moral and ethical considerations should be factored into decision-making during mediation.
Consider the need of a party to save face, to preserve self-respect, or the need to develop trust in another participant in the mediation process. Think about instances where the emotional impact of conflict adversely affects a disputant resulting in unintended emotional consequences. A lack of candor, gamesmanship, or the withholding of key evidence can raise fundamental questions about a disputant’s (and an attorney’s) honesty and integrity. Each of these issues present moral questions that must be reconciled on some level if the case has any chance of achieving settlement.
There is vast difference between engaging a disputant in discussion regarding one’s legal or financial interests versus circumstances where a mediator initiates conversation about the moral implications of one’s decision making. I am inclined to believe that discussions about “doing the right thing” from a moral or ethical perspective are probably quite rare or non-existent during most mediations. Are today’s mediators equipped and comfortable engaging in those kinds of conversations with participants at mediation?
Here I adopt the minority view which recognizes that there are indeed appropriate circumstances where a mediator should engage parties in moral discourse. Professor Robert P. Burns has described “moral discourse” as conversation that concerns the moral and ethical implications arising in a given dispute as well as a consideration of the moral effect of one disputant’s decision making upon another disputant or third persons. This is hardly a radical idea. Nearly 20 years ago when the field of mediation was emerging, Burns and others wrote extensively about the virtues of transformative mediation and the unique opportunity that it presents for lawyers and mediators to engage their clients in moral discourse.
The Profession Needs to Continue Maturing
Mediation has ripened into a new profession during the past couple of decades in the US. Somewhere during its evolution, however, the profession appears to have developed a chronic “blind spot” that stifles its ability to incorporate moral discourse into the mediation process when circumstances warrant. Despite all of the notable progress that has been made by mediation in both the private and public sectors it remains, in my view, sorely deficient in terms of humanity. Perhaps, like many legal practitioners, mediators simply reject the concept of moral discourse as functionally unsuitable or intellectually irrelevant.
Consider the life of religious zealot Paul of Tarsus, a first century Roman citizen of Jewish ethnicity. He was a Pharisee; an expert in the Mosiac Law. Christian scripture indicates that Paul aggressively persecuted those who dared to follow the religious tenets espoused by Jesus Christ. Then one day something miraculous occurred. Paul had a conversion experience with Jesus. His life was transformed from being a persecutor of Christians to becoming a believer and faithful minister of the Christian faith. The hatred and contempt that epitomized Paul’s life were now replaced by virtues such as love and compassion.
Reflecting on his newly discovered faith Paul wrote: “If I speak in the tongues of mortals and of angels, but do not have love, I am a noisy gong or a clanging cymbal. And if I have prophetic powers, and understand all mysteries and all knowledge, and if I have all faith, so as to remove mountains, but do not have love, I am nothing.”
Having been called by Christ to embrace the Christian conception of Love (the Greek word “agape”), Paul adopts the byproducts of Love including patience, kindness, humility, longsuffering, and so forth. He offers other Christians insight into this newly-discovered spiritual maturity:
“When I was a child, I spoke like a child, I thought like a child, I reasoned like a child; when I became an adult, I put an end to childish ways.”
Can the field of mediation, like Paul, discover and embrace a new level of maturity that is rooted in a collective calling to acknowledge the humanity of others? Can the profession infuse love, compassion, and charity into the mediation mix when appropriate? I submit that anytime we are engaged as mediators in the life of another human being then a categorical imperative arises wherein we must consider the moral welfare of the parties in addition to their legal and financial positions.
Here are five topics that concern the human condition which can be incorporated into the moral discourse of the competent mediator:
1. The Greater Good-
Much of the task of mediation is consumed with disputants who are fixated on efforts to remediate the present conflict, issues, and immediate challenges. They often lose sight of the long-range consequences of today’s decisions. Mediators are in a unique position to encourage disputants to consider their broader interests, the interests of their adversaries, and society’s interest in promoting a more just and humane society.
2. Mitigation of Human Suffering-
With the notable exception of Divorce/Child Custody Mediation, I suspect that most mediation practitioners are inclined to shy away from discussing the topic of human suffering with disputants. American legal and mediation cultures feel that suffering is too personal a topic and generally irrelevant in the context of a law-related dispute. However, if we are honest with ourselves, many practitioners would probably admit that there are occasions when we see disputants who are suffering financially, emotionally, and or psychologically but we simply do not know or care to respond to it. There are times when a mediator must be open to discussing human suffering.
3. Repudiating Bias, Prejudice, and Xenophobia
Most mediator training programs include at least a brief segment decrying race, gender, age, and other traditional forms of bias. But what about bias for or against individuals or organizations based upon economic, class, or social considerations? What about mediator bias against those who are strangers to us because of their language, dress, culture, and so forth? How about latent and patent bias against disputants who are not represented by legal counsel? Should the profession be more concerned about “de-biasing” mediators?
4. The Pursuit of Justice-
With mediation it is the disputants, not a third-party intercessor, who determine the framework of any settlement. This is a two-edged sword. In theory parties have the power to craft the terms of a negotiated settlement and often do so without regard to whether certain provisions may or may not be legally enforceable. There are occasions where parties, particularly those who are not represented by legal counsel, take liberties to create agreements that are incompatible with established law or public policy. While it is not the function of a mediator to dispense justice, that does not mean that a mediator is precluded from encouraging justice. Wherever Law resides it must be tempered by Justice and Mercy. Mediators can be instrumental in furthering the pursuit of Justice in society.
5. The Centrality of Love-
The vast majority of mediations stem from some form of interpersonal conflict. Contrary to popular belief, money (or withholding money) cannot solve every conflict or heal every wound. There are some conflicts that only Love and Compassion can remedy. I do not advocate for mediators to proselytize or preach to mediation participants. I am, however, simply arguing that mediators “have a heart” that is informed by Love when Love is called for. Acquired skills, education and training are necessary but not determinative of whether a given conflict will be peacefully resolved. Love, on the other hand, never fails.
Established norms regarding mediator competency are deficient, in part, because they fail to respect the humanity that is central to any moral enterprise. Most parties to a dispute want to win, but every individual needs to grow. Each of us has room to increase our capacity to understand others; to display empathy and respect others. Mediators can, in certain cases, facilitate morality-driven discussions that create an environment where growth can occur. But this will not happen on its own. We must be intentional. Mediators must bring more than dispassionate pragmatism. We must bring our humanity.
As I conclude this brief essay seated in the comfort and privacy of my office, it is heartbreaking to know that roughly 3,000 immigrant children who have been scattered throughout the US will fall asleep somewhere tonight wondering if they will ever be reunited with their families. Tonight I am confident that my grandchildren are relatively comfortable and secure at home with their parents. The current immigration debacle is a tragic reminder that not everyone is as fortunate. Scores of immigrant parents are spending every waking hour frantically searching for their children.
But hope remains. Mediators can play a role in the reunification and resettling of estranged immigrant families. However, in order to be effective agents for the peaceful amelioration of this and other instances of human conflict the mediation profession must cast away some of its immature ways. When a mediator senses that issues involving humanity are germane then he or she has a moral obligation to speak up and speak out. American mediators must aspire to serve society as more than simply professional resolvers-of-conflict for hire. Mediation can and must do better. Human lives are counting on it.