Do practicing mediators actually turn to conventional articulations of mediation ethical standards for guidance? So much ink has been spilled describing mediator standards, and so many hours have been devoted to parsing their every word, that some might hope the answer is “Yes, of course!” But I doubt busy mediators ever consult them. I personally read them often, but always as a matter of academic curiosity. Never when I’m actually in the field practicing. Perhaps that says something horrible about my professionalism. But if so, I suspect I am at least in outstanding company.
In her negotiatonlawblog, Victoria Pynchon recently confessed that she had a hard time articulating her ethical standards as a practicing mediator. She then posted a copy of the JAMS suggested mediator ethics, and invited comment. (See the negotiationlawblog posting here.)
I have written extensively elsewhere that I think the original Model Standards of Conduct for Mediators were a mistake, and that the revised Model Standards were largely worse.
The JAMS articulation is, I think, better than the Model Standards. But not helpful enough that I’d actually turn back to it in times of true ethical quandary. To spare you a good chunk of my concern, I’ll summarize it this way:
There are at least two ways in which I think the JAMS articulations of mediator ethical standards fall short. (To be clear, that’s far fewer than the number of ways in which I think the Model Standards are deficient, so if this is graded on a curve, JAMS may be in line for a Dean’s Scholarship or something.)
First, to my mind, the JAMS ethical standards only answer the easy questions. They do not address the very circumstances in which I might be tempted to turn somewhere for guidance. Never, for example, have I thought to myself, “I wonder if today I should be competent… Oh wait, Standard III says I should be.” Or “I wonder if today I should irrevocably commit myself to continuing the mediation, no matter what occurs… Ah, I see under Standard VII that I don’t need to.”
My suspicion is that, quite reasonably, JAMS wanted its standards to be broadly applicable and broadly accepted. The result of these two interests, I suspect, leads to walking only where the path is well-trodden and clear.
Second, and this is even more significant in my mind, the standards do little to address the relatively common and always difficult situations in which more than one ethical principle is implicated, and in which no course of action perfectly protects all of the mediation principles involved. One party appears to have an imperfect understanding of some aspect of a deal, the other party is credibly indicating an intention to withdraw from the mediation, the conversation up to this point suggest that the issues appearing in the legal complaint are only one component of what’s going on and what each party cares about, the case is proceeding under brutal external time constraints, the media are making regular requests for updates, and the mediator isn’t sure what the best next steps might be. That’s not just an ethical question, but there are ethical questions embedded in there. And nothing in most articulations of mediation ethical standards even acknowledges, much less guides, the balancing I must do.
I have rambled on with great passion and even greater tediousness on this topic elsewhere. But it seems to me that an acknowledgement of the difficult tradeoffs ought to be front and center in any honest articulation of mediator ethics, even though that would surely sound less noble, less comforting, and perhaps even less professional than the current alternatives out there today.
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