Bush, Robert A. Baruch. The Dilemmas of Mediation Practice: A Study of Ethical Dilemmas and Policy Implications.

A report on a Study for The National Institute For Dispute Resolution. NIDR, 1992. 36 pp.

Summary by Mariya Yevsyukova.

Copyright 1997 by the Conflict Research Consortium


Background: The Development of Mediation Practice

In recent years alternative dispute resolution (ADR) has become more popular for dealing with some kinds of conflicts than are formal judicial process. ADR offers more flexibility, privacy, and participation of all the parties in finding solutions. One of the most popular forms of ADR is mediation. This study is concerned with mediation in interpersonal, neighborhood, and community disputes; divorce and custody conflicts; and disputed legal claims for civil damages. By 1980 mediation had become a very popular and well-established practice in these three areas. In most cases, mediation aims at preserving relationships. It allows the parties to find their own creative solutions to their problems.

Focus of the Study: The Need for Ethical Standards

With mediation becoming more popular, many new practitioners are entering the field. Presently there are no standard ethical guidelines of behavior for mediators. This creates the danger of mediators stepping out of their neutral roles and damaging the process. In order to create standards of practice, there is a need for knowledge and a theory of mediation ethics. This study examines interviews with mediators about ethical dilemmas that they experience in daily practice. Only after knowledge of ethical issues in third party intervention is analyzed (to develop a theory of mediation ethics) can guidelines for training mediators in dealing with ethical dilemmas be developed.

Context: Mediation in the State of Florida

Mediation became recognized in Florida very early, in the 1970s Florida started using mediation on a statewide basis. In 1987 a law was enacted that allowed courts to recommend or order mediation in community and divorce cases. The law also encouraged the use of mediation in business and civil legal disputes; this practice began to be called "civil mediation". Presently Florida has almost 700 mediators practicing in community, divorce and civil mediation. They work for public as well as private organizations. Thus Florida has become a perfect setting for study. More than 80 mediators, representing private and public practice and all three areas of mediation were interviewed.

The Study: Methodology, Definitions, and Qualifications

In the course of the study, mediators were asked to describe situations where they experienced ethical dilemmas and then to analyze those situations. The definition of the term "ethical dilemma" was broad because the goal of the research was to identify the nature of mediators' ethical concerns. The term was defined as "a situation in which you felt some serious concern about whether it was proper for you as a mediator to take a certain course of action..." (p. 6). Then a distinction between ethical dilemma and "skills dilemma" was made. "Skill dilemma" described a case in which the mediator did not know how to implement a chosen course of action, while on ethical dilemma occurred when the mediator knew how to implement his plan of action, but was not sure about the effect it might have.

After identifying situations of ethical uncertainty, the mediators were asked to explain their concerns. Usually this took the form of suggesting several responses to the situation and analyzing how each of them would support one value, but would undermine another. Thus, ethical dilemmas were presented as value conflicts.

This study tries to fill the gap in contemporary research on mediation ethics. It concentrates on ethical dilemmas themselves rather than suggest answers to ethical problems. It incorporates the opinions of a number of mediators, as opposed to looking at the experience of a single practitioner. It does not discuss just one ethical issue, but focuses on a range of ethical dilemmas. It also brings some new insights not presented in previous research. The categorization of ethical dilemmas is done through analyzing the differences and similarities in the mediators' experiences. The report includes all questions raised by the mediators; none of them is excluded or added by the author. Thus the study is more descriptive than analytical. It is the beginning of a more comprehensive discussion of the issue.

Findings of the Study: Major Types of Dilemmas Reported by Practicing Mediators.

The author defines nine types of dilemmas reported by the mediators. Each of the dilemmas is subdivided into several sections which contain examples of situations where mediators encountered these ethical issues, as well as possible responses to the situations and their analysis in terms of competing values. The following situations are examined: (1) the skills that the case demands go beyond the mediator's training (e.g. identifying the signs of abuse or violence, recognizing a party's inability to comprehend the discussion, etc.); (2) the mediator's impartiality is challenged by prior relationships with the parties or his or her emotional reactions to the parties' behavior during mediation (sympathy, antipathy); (3) maintenance of confidentiality in cases of possible illegal actions of the parties or a potential unfair settlement, or where disclosure will convince the party to accept the proposal; (4) the lack of informal consent between the parties due to coercion, mental disturbance or lack of information; (5) tension between impartiality and the temptation to give solutions or direct the process toward more fair solutions; (6) tension between staying neutral and providing necessary professional legal or therapeutic advice; (7) the possibility of harming the parties if an agreement is not reached because of the information disclosed or emotionality that the process caused (or agreement itself does not solve the parties' problems); (8) the use of mediation by the parties to gain information, win time, or intimidate the other party; (9) conflict between the mediator's self interests and what is the proper process for the parties (pressure from the court to finish the case fast, maintaining relationships with lawyers and other professional groups).

Commentary on the Findings.

The author emphasizes four points in evaluating the results. First, findings of the study bring some new insights to the research on ethnical issues in mediation: they add some new categories of dilemmas; they provide subtypes of dilemmas; they present examples of dilemmas and their subtypes, helping to clarify the categories; the study examines the value conflicts that are produced by the situations. Second, the study shows that the dilemmas are similar in all three areas of mediation. Thus, general standards of practice can be developed. Third, the categories sometimes overlap each other, but categorization is still useful. It helps mediators to recognize the different types of situations where they can encounter ethical dilemmas, and it helps them to recognize different categories of dilemmas that the same situation can present. It reveals the opposing nature of some of mediators' obligations and the necessity to establish a system of value preferences. Fourth, most of the dilemmas are caused by the mediator's concern about the parties' self-determination, which often competes with other values. Thus, encouraging self- determination is one of the main values of the mediation process.

Conclusion: Policy Implications

A. Encouragement and Caution

This study identified ethical dilemmas which have to be addressed in standards of practice for mediators. The results provide encouragement as well as caution. First, they show that mediators do care about the effect of the process on the parties. They are concerned about hard value conflicts. The caution stems from the fact that mediators are left alone in dealing with ethical issues. There are no standard rules that would help them in choosing the right direction between competing values and objectives. The current standards contain inconsistences such as suggesting that mediators continue to pursue values even when they clash. They are very general and do not provide examples of situations and specific responses.

B. Structural Measures

Some programs employ structural measures in assisting mediators with addressing certain ethical dilemmas, like the temptation to act as counselors. The process is staged so that the parties get professional help from counselors before and after the mediation. However, structural measures raise administrative and financial issues by introducing additional services and costs.

C. Training and Standards

There are ethical dilemmas that cannot be addressed by structural measures, for example the nondirectiveness dilemma. This suggests the need for a system of practical guidance. This system should include training of mediators to recognize the existence and importance of ethical dilemmas and generate responses to them in specific situations. The findings of this study will be of great value for this kind of training. Training should also make the mediator familiar with the standards of practice, with what are appropriate and inappropriate responses to ethical dilemmas. The study is relevant because it suggests a structure containing concrete examples and possible responses. The study identifies a large range of ethical dilemmas that contain value conflicts at the core. Standards of practice should address those value conflicts, as well as establish a priority of values, which can be based on the main reasons for using mediation in those cases. According to the findings of the study, the main concern expressed by the mediators was for the value of self-determination. Thus, the main intention of using the mediation is to give the parties a chance to deal with their problems without interference from the values of others. In any case, standards should be based on the values priority system.

D. Conclusion

In order for mediation to keep its promise for the future, its benefits should be supported by the ranks of practitioners and policy makers. This study offers the input of practitioners on the issue of ethical dilemmas posed by mediation. It is time now for policy makers to provide the assistance and guidance that mediators need.

Appendix

Here the author presents standards of practice that he outlined, based on the study. The standards respond to the dilemmas presented in this research and place the principle of self- determination at the core. The values of "empowerment" and "recognition" best describe the reasons supporting the use of mediation.