Loose Ethics
Ethical principles are not always a good thing. This is the point made by Robert Benjamin in an article published in ACResolution Magazine back in 2004. Benjamin's thesis is that having too many ethical guidelines end up constraining a mediator more than helping him or her.
Unlike some other professions, a mediator's role is not always to be objective, dispassionate, and neutral. Mediators deal with pragmatic solutions, and if they are to gain the trust of the parties they cannot always afford to be "above the fray". Benjamin feels that the qualities of neutrality and impartiality are only there to cleanse and rehabilitate the image of a mediator. However, in a practical sense they only constrain the mediator.
Parties in a mediation do not always act rationally. Often times the parties are hostile to the mediation process, finding it unnatural or not helpful. Other times they are unwilling to discuss their interests because of some underlying fear. When mediators present themselves as completely dispassionate, they do little to recognize those underlying fears.
According to Benjamin, mediators learn early on that they must use their instincts, wit, and guile to reach a solution. In these cases, reaching a solution may require bending ethical guidelines to some degree.
However, Benjamin does not advocate abandoning all ethical principles. Instead, he presents 4 general rules that are important to follow at all times, but says that within the framework of those 4 mediators should be given some leeway to use their own style to solve conflicts. The 4 principles he mentions are:
1. The prospective mediator shall disclose to the parties any and all contacts or relationships with any of the parties, their associates, families, or organizations of the parties.
2. The mediator shall never make a recommendation or binding decision in a matter without the written agreement of all parties concerned, whether or not there is a standing order by a court or an appointing authority.
3. The mediator shall assure and protect the right of the parties to terminate the mediation process at any point without explanation.
4. The mediator shall not disclose to any third party, courts, judges, attorneys, other appointing authorities any information about the parties, their attitudes, motivations, or actions at any time. The mediator must maintain a primary duty of loyalty to the parties.
To read Benjamin's article, click this link: http://www.mediate.com/articles/benjamin16.cfm
1 comment:
I'm familiar with Benjamin's work and have read his "mediator trickster" article a number of times. Mediation is one of those professions that you're only as strong as your weakest link. In other words, I know I can trust myself to follow these general principles and then use experience to guide my way. But, what if I have concerns about another mediator, or what if mediator's instincts are different - or if they haven't developed instinct at all? Benjamin always pushes the boundries and that's why I like his writings.
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