December 2, 2007

Mediator Ethics … and What Actually Guides Us

By Michael Moffitt

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.

Michael Moffitt

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Comments

  • John Lande says:

    Hi Michael. As you know, we are singing from the same songbook on this. Having these rule-like statements apparently makes many people feel more comfortable. I suspect that it is more for symbolic value in creating legitimacy than practical value in helping practitioners solve actual problems. I don’t mind having such standards — I just think that people shouldn’t have too much faith in them. Rather, they should be part of a larger strategy for promoting good practice.

    I describe a general approach for this in Principles for Policymaking about Collaborative Law and Other ADR Processes, 22 Ohio State Journal on Dispute Resolution 619 (2007), which can be downloaded from my website – http://www.law.missouri.edu/lande/publications.htm. I summarize the main points in short piece, Recommended ADR Policy Principles, also available on that website.

    Best,
    Another voice in the wilderness?

  • Ellen Waldman says:

    I largely agree with Michael’s criticsms but- for the sake of discussion (which I guess is the point of the blogosphere) suggest that we were destined to end up with the guidance we have- given the choices we’ve made regarding how we “do ethics” in this field.

    We’ve chosen to “do ethics” the way Kant and Bentham did it. Generate broad principles of right action. Apply them in deductive fashion to problems as they emerge.

    So, Kant came up with his set of “perfect duties” and Bentham devised his “greatest good for the greatest number” algorithm. And, we in the mediation community came out with our Model Standards.

    But, the Model Standards – our field’s Ten Commandments (oh, well – nine) can be criticized in much the same way that many principle-based ethical codes can be: They are general and diffuse, articulated at an unhelpfully high level of abstraction and internally inconsistent. As Michael points out, they rarely provide an actual answer in any given ethically vexing situation.

    But, as we gnash our teeth at the inadequacies of the Text, perhaps we should recognize that these deficiencies are endemic to the form of ethical guidance we have chosen. The fault-we in the mediation commentariat should confess- lies not with our particular Code- but with our Method.

    Principlism and its corresponding codes are famously long on noble-sounding precepts and short on helpful prescription. Take the canonical ethical precepts that rule in the bioethical realm.

    Be Beneficent;
    Promote NonMaleficence;
    Respect Party Autonomy;
    Do Justice

    Well, that about clears it up, doesn’t it. When a warring family (say a Michael Schiavo and a Robert Schindler ) come before an ethics committee looking for guidance regarding their loved-one’s life-sustaining treatment, the committee should simply apply these mandates to the facts- and voila- the appropriate ethical course becomes clear.

    But, exhortations to respect patient autonomy – while at the same time “doing good”- don’t help when parties (and dispute resolvers) hold conflicting notions of patient preferences, quality of life, medicine’s goals and the importance of stewarding scarce medical resources.

    Similarly, commands to honor self-determination while presiding over a “quality process” don’t provide a clear road map when disputants are pursuing outcomes that appear dangerous- either to themselves or others.

    As Michael points out, principle-based codes don’t prescribe escape routes when mandates are in tension with one another. But, in my view, efforts to construct a hierarchy of guiding values are likely to founder on the diverse context in which these values seek expression. In one case, we might be tempted to give greater weight to disputant autonomy, whereas in another the consequences of that move are so dire that we intuitively shift our primary focus to protecting the interests of third parties. Factual particularity counts for alot here.

    In the bioethics realm- principlism has given way to a more case-based approach. While recognizing the importance of relevant principles , scholars increasingly are grounding their ethical deliberations in concrete scenarios. This shifts the search for consensus to the micro level-to the paradigm case and its “ethically significant facts” -rather than at the ethereal level of broad theory.

    Maybe we in the mediation realm should start shifting our locus of analysis. Maybe we should start talking more about how self-determination and “quality” (or informed consent or substantive fairness or absent third-party interests, etc, etc) cash out in particular cases- and less about how to sort through the muddle created by our various Standards.

    Perhaps , in the knotty area of ethics, thinking “outside the box” means getting down to ground zer0- the case at hand- and working up.

  • [...] once the mediation has ended.  These standards, as my favorite ADR iconoclast, scholar Michael Moffitt, has pointed out before, offer little meaningful guidance and don’t tell me whether following someone on Twitter counts as a [...]

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