Gini Nelson is the founder and author of the Engaging Conflicts Blog. Gini received her law degree from George Washington University Law School in 1983 after teaching Social Problems at the University of Kansas while completing her MA in sociology.
Gini’s practice includes mediation and settlement facilitation.
Gini, who posted her response to my request for comments on mediation ethics on her own blog here, did so before I noticed and after I make a few edits here. Any flaws in this version must therefore be laid at my door.
Gini’s pure unmolested thinking can be found here. Gini’s slightly edited thoughts (for style only) are in italics below.
As a starting point, I echo the physicians’ ancient ethical code as First, do no harm.
When we look at short lists of ethical obligations, this bedrock principle appears to undergird all of them — most of which emphasize client determination and transparency. This list should be short and it should be clear.
The obligation to do no harm, however, must be distinguished from the aspirational goal of “doing good.”
I am concerned about the blurring of lines between the two.
Is it our ethical duty, for instance, to advance the field of mediation, as much as we might aspire to do so?
Let’s Take Pro Bono Services as an Example of an Aspirational Goal
I, for one, oppose mandatory “pro bono” services, whether the professionals being hauled into servitude are mediators, lawyers, physicians, accountants or interior decorators (as much as the world would benefit were it as aesthetically pleasing as, say, every shop window in Paris).
At least in New Mexico, however, we are not ethically required to provide pro bono services. We are only asked to aspire to provide them.
This professional aspirational goal leaves it up to the individual attorney to consider what she can afford in terms of time, money and energy when considering whether to provide her services for free. Despite the clarity with which this principle is expressed in New Mexico’s Code of Professional Responsibility, I’ve sat in meetings with a combination of practicing attorneys, practicing mediators, state bar staff, court staff, and a judge where everyone was in complete accord on a mediator’s ethical obligation to provide pro bono services.
Why the Problem?
When the people responsible for establishing and implementing court-annexed mediation programs misunderstand an aspiration as an ethical obligation, they feel free to incorporate mandatory pro bono mediation services in those programs. In New Mexico, most state and city, government and judicial ADR programs require their mediators to provide their services free of charge.
I understand the budgetary constraints these programs work with. At the same time, I believe a confusion of the professional aspiration to “do good” with the ethical obligation to “do no harm” provides principled justification for program designers to expect mediators to work for free.
This, of course, harms the solo practitioner who can seldom afford to provide the same scale of pro bono services that larger or richer offices can handle. Perhpas more importantly, it constitutes a continuing harm on the entire mediation field by demeaning the value of its practitioners’ services.
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