Mediation Ethics Book Review

Mediators are uniquely capable of seeing contradictory versions of the same story and valuing at least two perspectives in a given dispute. We are able to juggle varying competing moral values and daily struggle with achieving the balance between right and just, practical and plausible, peace and conflict and black, white and gray.

In Ellen Waldman’s “Mediation Ethics”, the Editor is true to her calling. In the new book, she tackles thirteen ethical constructs by introducing the topic conceptually, reviewing whatever laws or rules may guide the ensuing analysis, and then illustrating the problem through a hypothetical dilemma or two. Each chapter contains commentary by two highly respected practitioners in our field, and then concludes with a brief section called “Editor’s Thoughts”.

Initially, the format and structure of the book make it challenging to read. While the 27 contributing authors are impressive and thoughtful in their analysis, the combination of their unique perspectives makes the 448-page book somewhat unwieldy. Ever a scholar, Waldman, who is a professor of law and founder and director of the mediation Clinic at Thomas Jefferson School of Law in San Diego, California, includes 37 pages of “Notes” at the end of the book, detailing the various statutes that are referenced within it as well as the Model Standards of Conduct for Mediators adopted by the ABA and others in the Appendix.

Nonetheless, one cannot explore this book without appreciating the enormous effort that must have gone into such a thorough survey, not to mention the prestigious list of contributors who agreed to analyze these topical issues. True to professorial style, my only complaint was that the Editor failed, in most instances, to provide conclusions that offered any “bright lines” upon which we practitioners can guide ourselves and the disputants who come before us. For example, in the Chapter, “Tensions Between Disputant Autonomy and Substantive Fairness: The Misinformed Dispute”, she notes that mediation often involves “fuzzy borders” where “ambiguity feeds confusion” and “issues remain knotty”.

It was on the one hand, incredibly rewarding and on the other somewhat confounding that well-respected leaders in our field, such as Lela Love, Jeremy Lack, Dwight Golann and Charles Pou, did not speak in one voice, but rather reached varying conclusions as to the ethical obligations invoked by the hypotheticals. Some of the analyses by contributing writers were so outstanding that I was left longing for more analysis, not less.

The roster of contributing authors reads like a “Who’s Who” in the field of ADR Internationally, including Harold Abramson, Phyllis Bernard, John Bickerman, Bill Eddy, Carrie Menkel-Meadow, Bruce Myerson, Forrest Mosten, R. Wayne Thorpe and John Winslade among others. While Waldman attempted to synthesize their varying analyses ,in the end she was generally only able to summarize them, leaving her readers to draw their own conclusions.

For example, Lela Love commented, “In mediation, substantive fairness is quite different (than trial or arbitration). The parties are the arbiters of the relevant facts. A fair outcome is one that parties believe is acceptable and fair—not an outcome, necessarily, that would mirror what a court would do.” Later she spoke of “the mandate for mediator humility”, a phrase I will carry with me as a guiding reassurance of the limits of my capacity and role in mediation for many years to come.

Jeremy Lack’s analysis in the Chapter on “Mediating on the Wrong Side of the Law” begins with the rhetorical question, “Is this mediation kosher?” and concludes, “This is a personal consideration for each mediator, and it highlights the importance for each mediator of knowing his or her own comfort levels with ambiguity and his or her own values and ethics.”

Julie Macfarlane, commenting upon the same hypothetical arising out of the mediation over the sale of illegal drugs, suggests, “that we should trust each mediator’s intuitive moral compass…” This, she concludes, may cause some of us to choose to withdraw from mediating a dispute involving illegal acts or transactions, while others would make a moral judgment which would allow them to tolerate certain acts, such as illegal sale of marijuana, tax evasion or dissolution of a same sex marriage in a state where gay marriage is unlawful, but not mediation of a transaction involving child pornography, sale of cocaine or grand theft.

In the Chapter on “Confidentiality”, Bruce Pardy recognizes that “I cannot coerce, but I can attempt to persuade.” In some fashion, the experts serve to remind the reader of the limitations of our role as mediator. Commenting upon the same hypothetical, involving expert evidence which established that certain land was highly toxic and unsuitable for building the proposed housing project, Charles Pou concluded, “If we could not find a mutually satisfactory approach, I’d check my gut and, I hope, follow the course that will allow me to look in the mirror the next morning and succeeding mornings…” Pou concludes: “Even confidentiality—which is in many ways the most objective and clearly defined of a mediator’s ethical duties—may involve a good deal of subjectivity as a mediator weighs obligations and options, susses out for himself what is ethical, and then acts accordingly.”

The cases Waldman uses are engaging, well written and easily identify the ethical quandaries that are presented in mediations like those handled by many mediate.com subscribers. Having the book at my side became a happy place to bat around ideas and issues with the best and the brightest in our field while I was reading.

The editor’s conclusions are, in my view, unsatisfyingly equivocal. As she herself concludes in the Chapter on “Information, Autonomy and the Unrepresented Party” about disputant deliberation, it “often falls squarely in between that floor and ceiling—in the Goldilocks space of neither perfectly hot nor perfectly cold, but perhaps good enough to proceed.”

I am left in full agreement with Waldman’s conclusion in regards to the duty of reporting misbehavior learned in mediation, “As in every other mediation dilemma, context matters…This is probably as it should be, but the tension can engender moral distress.”

The editor concludes, in the Chapter on Mediating Multiculturally, “ Just as mediation offers parties an opportunity to express their deepest normative commitments, so too must the process respect and give voice to mediator values.” In the end, we are all called upon to draw our own conclusions, hew to our own moral codes and engage our utmost humility as we approach the on-going challenges presented in our work in this field.

The book is a very worthwhile read and likely a highly useable text in its ambitious examination of critical ethical dilemmas raised commonly in mediation. Too bad we’re left with the tension of putting our own conundrum into context and checking our own guts to determine the best course to proceed in each instance.

                        author

Jan Frankel Schau

Attorney Jan Frankel Schau is a highly skilled neutral, engaged in full-time dispute resolution. Following a successful career spanning two decades in litigation, she has mediated over 700 cases for satisfied clients. Ms. Schau understands the nuances of trial and settlement practice as well as client relations and balancing the… MORE >

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