Working Paper 89-3, March, 1989.
By Kevin Gibson.
Department of Philosophy
University of Colorado at Boulder
This paper was written with a small grant from the Conflict Resolution Consortium, University of Colorado. Funding for the Consortium and its Small Grants Program was provided by the William and Flora Hewlett Foundation. The statements and ideas presented in this paper are those of the author and do not necessarily represent the views of the Conflict Resolution Consortium, the University of Colorado, or the William and Flora Hewlett Foundation. For more information, contact the Conflict Resolution Consortium, Campus Box 327, University of Colorado, Boulder, Colorado 80309-0327. Phone: (303) 492-1635, e-mail: firstname.lastname@example.org.
Copyright (C) 1989. Kevin Gibson. Do not reprint without permission.
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In the absence of licensing or governing professional bodies, attempts have been made by, for example, Christopher Moore to formulate an ethical code for mediators. (1986) The Proceedings of the Eleventh Annual Conference of SPIDR was devoted to Ethical Issues in Dispute Resolution. The results of these attempts has been to formulate some 'rules of thumb' and some guidelines in mediation practice. They are voluntarily subscribed to, and essentially guard against the potential grounds for a lawsuit. However, there has been no theoretical backdrop for these guidelines other than general intuitions of right and wrong. This paper divides into three parts. In the first I will sketch some major meta-ethical theories to show how we derive our sense of right and wrong, good and bad. In the second, I will briefly illustrate how such theories give us a way to codify and defend our ethical intuitions. This theoretical underpinning also gives us a basis for reasoned argument over matters of ethical uncertainty in conflict resolution, such as fairness and confidentiality. Thirdly, I will suggest a framework which we can use to develop a code of ethics.
WHY HAVE ETHICS?
One way to approach the question of `why have ethics?' is to draw an analogy between language and ethics. In language we all use grammar but we are seldom aware of it, and only formulate it when we reach a difficult question -- `he and me' or `he and I?' Similarly in our behavior we all have ways of going about in the world. Rarely are we self-conscious about our acts and we fall back on ethical systems mostly when we face issues that are new or uncertain. By looking at the way that mediators behave in practice and the way that they recommend others to act, we can begin to form a `grammar of behavior' for those engaged in dispute resolution. In order to construct this grammar we need to distinguish various ways of thinking about how people decide what it is to be good or bad, right and wrong.
META-ETHICS AND NORMATIVE ETHICS
The role of meta-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 conventions. This can be illustrated by Raiffa's findings in his Art and Science of Negotiation (1982). Raiffa posed the question to students: 'Should you be open and honest in the short run because it is right to act that way, even though it might hurt you in the long run?' He notes to his distress that some have responded 'I think that that behavior is unethical, but I would probably do the same.' Raiffa himself feels that Normative ethical frameworks are not designed to yield definitive decision procedures, and we should not expect answers from these philosophical teachings and reflections (p.344) but this seems to me to miss the point: Normative ethics deals in what we ought to do in particular situations, but it is derivative from a meta-ethical theory. Raiffa already has decided that what is `open and honest' is what is `right'. He has loaded the question so that anyone who disagrees that the `open and honest' approach is automatically right brands themselves as being `unethical'. As in any complex question ('Have you stopped beating your wife?') Raiffa's question makes certain covert presuppositions; in this case the assumption of an ethical theory that equates openness and correct behavior. However, a utilitarian might well argue that what is right stems from what is beneficial to the maximum number. So it is entirely possible that what is right could be, for example, `discrete and reserved'. Moreover, on utilitarian grounds, the way to find this out would be empirical -- i.e. by testing to see what approach maximizes benefits collectively. Raiffa has to explain why in the absence of any overt meta-ethical theory he can claim to know a priori what is 'right' about any particular course of action. Once this is understood, the results of his ethical casework become less surprising, and rather than showing us that many people are 'unethical' they show that people have different opinions about what is ethical. Thus recognizing the meta-ethical standpoint of participants and commentators appears to be crucial in understanding the dynamics of negotiation in general.
Laying out the main meta-ethical theories will give us a chance to see where tensions will arise in our ethical intuitions. Meta-ethical theories are theories about ethics, that is to say that they are codified formulations about the way that we should behave and the ways in which we define `right' and `wrong', `good' and `bad'. These formulations are not necessarily exclusive or exhaustive; however they stress different criteria for selecting specific courses of action. Here I will sketch briefly the three main meta-ethical schools. The Utilitarian formulation considers the consequences of an action as paramount in ethical consideration. The rightness and wrongness of an act is gauged by its good or evil effects rather than the mere act itself. Generally this sort of thesis holds that a right act is one where we are able to maximize the good, or minimize the bad, and that the calculus will tell us what is our duty in any given case. A popular version of the theory tells us that we should do whatever creates 'the greatest happiness for the greatest number'. The promise of utilitarianism is that it may be able to provide us with an empirical and objective way to settle ethical disputes. However, the theory is not without its difficulties. What, for instance, is the `good' that is being maximized? John Stuart Mill equated the good with happiness or pleasure, yet we can think of times when someone has been made happy or pleased where we would not necessarily say that it was a good act - the satisfaction of the sadist, or the telling of a `white lie' for instance. Furthermore, it is difficult to compare the quantities and qualities of happiness - is one brief but intense moment equal to long periods of reasonable happiness? Modern versions of consequentialist theories have moved away from the belief that the good can be captured in terms of particular values such as pleasure or happiness, and instead have calculated maximum utility on the basis of what an individual would choose among available alternatives, i.e. the good is thought of that which, on aggregate, maximizes the satisfaction of personal preferences. This gets away from the difficulty of formulating objective qualities which constitute the good for everyone, and allows subjective tastes and personal values to be taken into consideration. The appeal of preference utilitarianism is that it gives an objective calculus which takes subjective opinions into account. In short, preference utilitarianism asks people to rank their preferences and deems the best result as that which can satisfy the greatest number of preferences for the greatest number. However, there are still lingering difficulties with the theory. If, for instance, someone's preferences are irrational, immoral, unjust or even perverse, it is not at all clear that it would be nevertheless good to satisfy them. Another difficulty is that the theory seems open to the possibility of oppressing the minority, since it relies on majority rule. If, for example, the majority could be made happy by the over-riding the interests of one individual, then a utilitarian would consider that, on balance, the individual should be allowed to suffer. We can contrast meta-ethical theories that examine consequences with those that look at the intrinsic act itself as being moral or immoral irrespective of the consequences. Deontologists believe that the value of actions lies in the motives rather than the consequences. Hence, we should keep promises and fulfill obligations simply because they are promises and obligations as opposed to looking at the possible consequences. An act is right for the deontologist when it conforms to a rule of conduct that is dictated by some account of duty. Philosophers in this tradition have attempted to come up with a coherent notion of duty; perhaps the best known formulation is the 'Golden Rule'-- 'do unto others as you would have them do unto you'. Some other accounts rely on external commands, sometimes divine, which tell us what to do; others believe that we have some sort of intuitive faculty which gives us insight as to what we ought to do on any given occasion. Still others believe that the ultimate principle of duty is derived from some sort of tacit social contract. With any sort of duty-based theory it is hard to make a convincing and rational argument for the principle posited. For example, intuitions may be strong and self-evident to the person who experiences them, but not at all obvious to anyone else. A key element of traditional formulations of deontology has been an emphasis on personal autonomy; because people are not acting because of objective or external dictates, then their actions are internally driven. Hence, people are responsible for their own decisions and actions in a way that the utilitarian is not, since the utilitarian could always point to the demands of the calculus. A corollary of the deontological theory is that we should consider persons as individuals capable of independent decisions and worthy of respect as persons. To paraphrase Immanuel Kant, the theory suggests that we should treat people as ends in themselves, rather than just as means to an end. A recent approach to ethics has been to accept that we should look at acts and motives but to reject that we can find out what is good or right by examining duties, since duties are derivative of various kinds of rights. It is because we have rights that we generate duties; moreover we can have rights without demanding to have them fulfilled, whereas duties imply that we need to act. Thus, for example, I may have a right to fly a kite in the city park but need never exercise that right, but if I have a duty to clear my sidewalk of snow it implies that I have to do so in the case that it snows. Thus Mackie, (1977) for one, suggests that rights precede and undergird duties. Rights-based theories of ethics identify different types of rights, derived from Hohenfeld's legal analysis: One type are privileges. These might be seen as an absence of duty to refrain from doing something, or common liberties. For example, I may, if I so choose, speak publicly on any topic, or choose to relocate. Another sort of right is a claim right which may involve an obligation to act; so that if you owe me money I have a claim on you to repay me. A third type is an immunity right, which prevents others from taking every sort of liberty against me; you may not, for instance, come into my house and walk off with my goods because you choose to do so. Lastly we have Power rights or authority over the lack of immunity of others. My power can be seen as someone elses liability. Hence, there are certain positions of authority which endow their holders with specific rights; teachers, police, and doctors can treat us in ways which we would not otherwise tolerate. Another meta-ethical approach concentrates not on the actions or principles that guide moral actions so much as on the character of the agents themselves. Instead of looking at what we do this sort of theory looks at who we are. Acting from a sense of duty or out of utility may be done grudgingly or with resentment; a child told to thank his grandparents for a gift may do so involuntarily or without much sincerity, and although the he performs the `right' act, we would probably not feel that his act was entirely `good'. This implies that duty, rights or utility do not tell the full story -- we want to include a component of moral censure or praise based on the moral worth of the actor. Virtue ethics, then, looks at whether the person is praiseworthy or blameworthy, admirable or reprehensible, or virtuous or vicious. It does not suggest what ought to be done on any particular occasion but rather what sort of dispositions and habits we should inculcate in order to benefit mankind. This kind of theory suggests that we should look to the example of great men and women, and follow our saints and heroes. Again, we can see that although one person may adopt Virtue Ethics as an over-arching guide, it may not be systematic or rationally persuasive. Different people may adopt different heroes, or choose various virtues. They may rank virtues differently. While it may be effective within a homogeneous community, Virtue Ethics provides little guidance on new and different moral dilemmas or when values conflict over particular cases. Meta-ethical theories need not be exclusive; indeed we would be suspicious if they did not all condemn, say, slavery. Nor do we have to adopt one at the cost of renouncing all others. However, the differences in approach do reflect our differing intuitions and stresses in the way we judge moral acts. Where they become most useful is in our 'cool reflective hours' when we formulate our ethical principles and wonder about hypothetical situations. Such theories give us purchase when we argue or rationalize certain behaviors. For example, if we should think about whether a starving man should be punished for stealing food, meta-ethical theories will suggest different ways that we can argue the case; maybe in terms of whether a `golden rule' has been broached, or what would give the maximum happiness to the maximum number, or what a particular saint or hero would have done, or what rights the individual parties have in such circumstances. Each approach will evoke and stress different aspects of the moral question and give different insights. Without any meta-ethical theory, though, we are left only to gainsay each other's intuitions.
NEGOTIATIONS TO MEDIATION
Negotiation, and mediation, occurs between people. Because of this it will vary with the disposition and traits of the parties involved. In the case of mediation the neutral mediator still retains much power and can influence the psychological, procedural and substantive elements of a settlement. Hence the ethical bias of the parties will be a significant consideration in shaping any outcome. As we saw above in the analogy with language, individuals do not have to be able to explicitly articulate the grammar of their behavior; it is sufficient that they have some basis for it, whether learned, acquired or intuited. Still, in a negotiation situation, their ethical beliefs will color both their perceptions and approach to bargaining. Again, I am not suggesting that an individual will consistently stick to one theory exclusively, but rather that they will be fundamentally prone to one sort. At times it will be worthwhile to explore what participants in a negotiation believe constitutes `the good' or `the right'. A deontologist, for example, will be interested in the inherent moral worth of an act or decision more than its consequences. She may describe consequences as somewhat arbitrary and stress the autonomy of the decision-maker, the motives of the participants and the importance of binding principles. It will be important for her to feel that she is being treated fairly; that is, treated in the same way that anyone in a similar position would be treated. Someone with a rights-based theory will consider what entitlements and liabilities they have, and what sorts of authority and immunities are appropriate in a given situation. A mediator might hear stress being placed on, say, 'the rights of the custodial parent' or the redress to which the party is 'entitled'. In contrast, a utilitarian will be most concerned with outcomes and motives are considered as secondary. Results will define what is good or right. Moreover, results are quantifiable and testable, and hence there will be an emphasis on the measurable. Individuals may have different perspectives on what sort of results are preferable and the type of outcome that they are looking for. Those distinctions are less important here than the fact that the issues are framed in terms of consequences. The upshot of people having differing ethical theories is that they will be looking for varying elements to satisfy them in a negotiation, or the same sorts of things couched in language that accords with their own ethical perspective. One person may `get to yes' more quickly if he or she is informed that the settlement appears to offer the best possible outcome for all concerned, whereas another will settle if he or she feels fairly treated and allowed to make a personal decision. In all cases a mediator needs to pay attention to the values that the parties express. The difference here is that ethical values are fundamental values that underwrite all others. In that sense, finding out the ethical values and exploring them with a negotiating party will allow the mediator to find out relatively quickly what sort of settlement will be acceptable. Often, for instance, clients will claim that they are primarily interested in a 'fair' settlement to all parties; in such a case the mediator needs to explore what is meant by the word `fair' since it could carry very different meaning for each party -- one may mean establishing his or her rights whereas another believes that it is maximizing the number of everyone's satisfied preferences. Just as our approaches to ethics differ, so will mediators approaches to the process of mediation itself. Moore is one of a few who have attempted a theoretical basis for the mediation process, and in doing so he has incorporated tacit ethical assumptions. For example, one of Moore's primary claims is that: Mediation must be dedicated to the principle that all disputants have a right to negotiate and to attempt to determine the outcomes of their own conflicts. (299) On the face of it, this is a claim about rights; it is concerned with the entitlements of the parties -- the disputants not only should work out their own solutions but they have a right to do so. We could contrast this to some possible competing claim, say, that parties should mediate because mediation brings about the optimum results. Like many ethical statements employed in negotiation, Moore asserts rather than argues his fundamental claim. However, he does not say what sort of right this may be -- is it, for example, a basic human right along the lines of freedom of speech?, or alternatively is it a privileged right allowed to people who live in certain societies or even areas of a country? Is it a general right that applies tout court or one which only applies to specific areas -- divorce, child custody, torts and so forth? It is not entirely clear where the boundaries of this right fall; certainly I can try to mediate civil cases, but would the same claim to self determination apply to criminal cases? Explicit integration of such a claim into a meta-ethical theory would be useful here, because without it we can only accept or deny our own perception of what Moore is saying. And certainly since this is a fundamental premise it seems that if we deny it then we must also reject other parts of his theory of mediation. Perhaps we should treat the freedom to determine the outcome of a conflict along the lines of the freedom to travel as we please -- a basic but not absolute right that may be restricted. However if we are going to use the terminology then it seems necessary that we embody it in a wider ethical framework. The same could be said, of course, if we chose to base mediation on a theory of the propriety of self-determination or efficiency of result. It is apparent that is a double difficulty in looking at the ethics in mediation. At one level, very few mediators have attempted any sort of theoretical justification of the process in which they are engaged, and at another, when they do so their ethical assumptions are incorporated as tacit assumptions. A corollary of using vague abstract terms as if they were concrete and understood is that statements on the theory of mediation are subject to interpretation. Moore says typically that The goal of negotiation and mediation is a settlement that is seen as fair and equitable by all parties. (303) This claim suffers from the vagueness of the central terms: What is intended by one person using the word `equitable' may not be understood uniformly. An equitable settlement about the splitting of household goods could refer to the material distribution the articles themselves, or their monetary value, or on the basis of sentimental attachment, or future utility, or based on who purchased the articles, and so forth. Therefore it is hardly surprising that disputants will have various views when they attempt to settle the matter de novo. The dissonance over the meaning of key terms in mediation is not purely semantic. The differing usages of the terms reflect pluralistic ethical values. By examining those values we can attempt to resolve some of the vagueness. Essentially we are not looking for a system of conflict resolution that is fair or equitable in the abstract but one that is fair by the standards of the disputants themselves. This means that any account of the basis of mediation like Moore's cannot be made without reference to the disputants own ethical values. Some of the key issues in mediation are discussed in isolation from ethical theories. Here I will look at three issues: empowerment, confidentiality and impartiality. Again, the theories themselves will not provide an answer to these issues, but they will allow us to reframe the discussion in explicit terms. The effect of this will be to allow debate over both the ethical assumptions and the argument of a particular position. For instance, questions of how directive a mediator should be could be discussed in terms of the consequences of the act, or in terms of the rights of the parties involved. At one level the debate is about the ethical stand -- utilitarianism, rights-based ethics and so forth. I want to maintain that arguments about meta-ethics are distinct from the issues of normative ethics within a school; for once the framework of the debate is established then we can debate whether, say, being more directive brings about better consequences. In other words, the question of whether one type of act brings about greater net utility is distinct from whether the act is moral irrespective of the consequences. Often in mediation there is a clear disparity in the levels of power that the disputants believe they each have; typically a husband and wife in a divorce mediation will have well established power relationships which may or may not reflect the actual balance. They may be unaware of their alternatives or unwilling to do anything they believe will hurt the other party. The same sort of thing is true in other kinds of mediation; strong personalities or set patterns of behavior can affect the substance of the negotiation. A mediator involved in such a situation may be tempted to coach the unempowered party or to tell them of their true power. The open question is whether that sort of intervention is either acceptable or advisable. A utilitarian approach will gauge the empowerment issue in terms of the likely consequences of the act. If the result of such an intervention turns out to be beneficial to all parties concerned then ipso facto it will have been justified. The `internal' issues then will revolve around how to calculate the utilities of the disputants, e.g. Can we weigh the satisfaction of one preference by one party against that of another? One way to do this might be to reduce the calculation to monetary terms -- 'how much would you pay for ...?' and then compare the various choices. Another might be to work out some form of decision tree based on numerical choices. Game theory works on this sort of principle. Still, there are doubts about how to judge quality versus quantity on any utilitarian scheme. If I have more of my less important interests satisfied, does this equal less of my more important ones? Moreover, the minority is at risk. In a multi-party negotiation, the least well represented may well have to suffer unequally because utilitarianism allows the most satisfaction for the majority. Empowerment may be easier to deal with for the utilitarian than confidentiality. Let us use the example here of the unseen voyeur who spies on a young woman. On the face of it, the utilitarian should approve of such things going on; the voyeur is made more happy and the woman is not distressed. This might be the case if the calculus included only those two people. However, at least one of our objections to the example is that if that sort of behavior was condoned, then there would be a general disutility brought about by the sense of threat and intrusion that people would feel. Similarly, a case of coaching may just involve two individuals in an isolated incident. Confidentiality on the other hand seems to be cardinal to the process of mediation, and breaking confidence might undermine the process altogether. Therefore the utilitarian approach has to determine the scope of its analysis in order to come to a conclusion. Nevertheless it does offer the best possibility of arriving at an empirically verifiable result. The same sorts of issues would be involved in examining mediator neutrality from a utilitarian standpoint. Should we find that the net result of a mediator being less than neutral i