LAW AND ETHICS OF MEDIATION II:Role of ethics in mediation, 8 Dimensions of Ethics in Mediation

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Conflict Management HRM624

Lesson 36

LAW AND ETHICS OF MEDIATION II

Quotation

'Golden Rule'-- 'do unto others as you would have them do unto you'.

Law of mediation is being developed but ethics are important in the initial stages. It seems as role of ethics

neglected until now. Mediation is non-adversarial alternative to dispute resolution. Mediation is not a forum

for misbehavior. Failure of mediation may lead to adjudication; hence mediation must work under the

framework of appropriate law. Mediation is flexible.

Keeping promises as a process or consequence

Mediation is based on ethics and on which law is based. Ethics change with time, places and

communities.

Right act is one where we are able to maximize the good

Society operates within the blinders and distortions created by the invisible veil.

Some people value actions lies in the motives rather than the consequences.

Mediation is a flexible process. Any mediator has to modify the process and approach to

understand and resolve the issue. The mediators are encouraged to be creative and tailor each

mediation to meet the needs of all the parties to a dispute.

The purpose of ethics in mediation is to handle emerging issues while doing mediation. Mediation

is a voluntary, non-binding process involving a neutral third party to help the disputants to reach a

mutually beneficial agreement to resolve the issue.

A mediator helps the disputants reach an agreement by facilitating communication, promoting

understanding, assisting them in identifying and exploring issues, interests and possible bases for

agreement, and in some matters, helping parties evaluate the likely outcome in court or arbitration

if they cannot reach settlement through mediation.

Role of ethics in mediation

The role of ethics in negotiation has been neglected. Often when people talk about what is ethical they

immediately talk about what they feel people should do and how we can persuade them to come round to

our way of thinking.

However, this sort of discussion presumes certain conventions of what is right and wrong without looking

at the theories behind these connotations of rights and wrong.

Negotiation, and mediation, occurs between people. It will vary with the disposition and traits of the parties

involved. The ethical beliefs will color perceptions and approaches to bargaining and results of the

mediation.

In all cases a mediator needs to pay attention to the values that the parties express. Mediation must be

dedicated to the principle that all disputants have a right to negotiate.

Kevin Gibson, Department of Philosophy University of Colorado Boulder

Mediation is Not

toothless

just a compromise

a bar to arbitration or litigation

what lawyers or managers do `all the time'

a waste of time and money if it fails

yet another cost to the unfortunate parties

a sign of weakness

to avoid courts

to disclose your hand necessarily

to be risky

a kind of counseling

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Why is Mediation Regulated?

The regulation of mediation can be best understood as a series of efforts designed to protect and preserve

the essence of the process, to ensure its effectiveness, and to ensure that, as it is used, other legal rights and

obligations are not damaged. The more radical wing of the ADR movement argues that the presence of the

invisible veil keeps us from truly realizing the promise of mediation.

To preserve the essence of mediation

To ensure the effectiveness of mediation

To protect other legal rights of the participants to a dispute

The authors present these model standards of conduct for mediators to serve three major functions: as a

guide for the conduct of mediators, to inform the mediating parties, and to promote public confidence in

mediation as a process for resolving disputes.

8 Dimensions of Ethics in Mediation

Following are the 8 dimensions of ethics in mediation.

1. Self-determination

2. Impartiality

3. Conflicts of interest

4. Competence

5. Confidentiality

6. Quality of the process

7. Advertising and solicitation

8. Fees

1. Self-determination: A mediator shall recognize that mediation is based on the principle of self-

determination by the parties. Self-determination requires that the mediation process rely upon the ability of

the parties to reach a voluntary, un coerced agreement. Any party may withdraw from mediation at any

time.

2. Impartiality: A mediator shall conduct the mediation in an impartial manner. A mediator shall mediate

only those matters in which he or she remains impartial and evenhanded. If at any time the mediator is

unable to conduct the process in an impartial manner, the mediator is obligated to withdraw. A mediator

should guard against partiality or prejudice based on a party's personal characteristics, background or

performance at the mediation.

3. Conflicts of interest: A mediator shall disclose all actual and potential conflicts of interest reasonably

known to the mediator. After disclosure, the mediator shall decline to mediate unless all parties choose to

retain the mediator. The need to protect against conflict of interest also governs conduct that occurs during

and after the mediation. A conflict of interest is a dealing or relationship that might create an impression of

possible bias. Without the consent of all parties, a mediator shall not subsequently establish a professional

relationship with one of the parties in a related manner, or in an unrelated manner under circumstances that

would raise legitimate questions about the integrity of the mediation process. Pressure from outside the

mediation process should never influence the mediator to coerce the parties to settle.

4. Competence: A mediator shall mediate only when the mediator has the necessary qualifications to satisfy

the reasonable expectations of the parties. Mediators should have information available to the parties

regarding their relevant training, education, and experience. The personal competence requires appropriate

knowledge about personal, local, and universal human values.

5. Confidentiality. A mediator shall maintain the reasonable expectations of the parties with regard to

confidentiality. The parties' expectations of confidentiality depend on the circumstances of the mediation

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Conflict Management HRM624

and any agreements they may make. The mediator shall not disclose any matter that a party expects to be

confidential unless given permission by all parties or unless required by law or other public policy. If the

mediator holds private sessions with a party, the nature of these sessions with regard to confidentiality

should be discussed prior to undertaking such sessions. In order to protect the integrity of the mediation, a

mediator should avoid communicating information about how the parties acted in the mediation process,

the merits of the case, or settlement offers.

6. Quality of the process: A mediator shall conduct the mediation fairly, diligently, and in a manner

consistent with the principle of self-determination by the parties. There should be adequate opportunity for

each party in mediation to participate in the discussions. The parties decide when and under what

conditions they will reach an agreement or terminate mediation.

7. Advertising and solicitation: A mediator shall be truthful in advertising and solicitation for mediation.

Advertising or any other communication with the public concerning services offered or regarding the

education, training, and expertise of a mediator shall be truthful. Mediators shall refrain from promises and

guarantees of results.

8. Fees: A mediator shall fully disclose and explain the basis of compensation, fees and charges to the

parties. The parties should be provided sufficient information about fees at the outset of a mediation to

determine if they wish to retain the services of a mediator. A mediator should not enter into a fee agreement

that is contingent upon the result of the mediation or the amount of the settlement. A mediator should not

accept a fee for referral of a matter to another mediator or any other person.

Summary

Ethics and law of mediation is being developed. Mediation as a practice or service can develop only if it is

practiced under the umbrella of appropriate ethics and the provisions of law. The origin of conflict may

have roots in the diversity of values adhered by the disputants and the appreciation of this dimension of

conflict will help resolve conflicts amicably.

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