Ethical Perspectives in Mediation

Moral excellence comes about as a result of habit. We become just by doing just acts, temperate by doing temperate acts, brave by doing brave acts. Aristotle

Always do right – this will gratify some and astonish the rest. Mark Twain

Action is the sole medium of expression for ethics. Jane Addams

Ethics

Ethical issues in mediation are typically associated with confidentiality and conflict of interest. However there are a broader range of challenges we face that involve a much wider range of actors. This paper will consider the role of those challenges and the application of those choices in mediation related to:

The actions of the mediator guided by Model Standards
The actions of the parties guided by community norms
The mediation process guided by the ground rules
The outcome guided by principled decision making

Ethics is the process of determining what one considers right and wrong actions. This may sound easy, but in reality it’s a complicated task. Right and wrong are dictated by one’s perspective and may vary according to culture, moral climate, and individual circumstance. What may be the right principle or action for one party may be absolutely wrong for another. To help navigate through this ambiguity, we need some guidelines for decision-making and action. Due to the large number of considerations involved in many decisions, ethical decision support systems have been developed to assist decision makers in considering the implications of various courses of action. They can help promote the integration of virtues and principles into the decision.

Mature ethical reasoning is generally defined by those who recognize the concerns of others, as opposed to those with less mature thinking, who focus only on themselves. This should sound familiar as the principles of transformative mediation. Practicing ethical reflection is a necessary framework for promoting maturity in ethical thinking. This framework involves using values and reciprocity. Values are beliefs (virtues) or standards (principles) and come into practice through virtue ethics and principle ethics. Reciprocity is balancing the needs of the parties. Ethical decision-making can be a profoundly simple skill that can become a compass for guidance. Ethics should answer the questions: Who do I want to be (virtue ethics)? What shall I do (principle ethics)? And how does it affect others (reciprocity)? A unified paradigm could combine ethical theories into:

• the belief there are primary moral principles (objectivism)
• within a variety of individual actions that can be taken (subjectivism, pluralism)
• that are bounded by acceptable limits (relativism)
• based on universal virtues (universalism)
• shared by all people (relativism).

Principle Ethics

Principle ethics answers the question What shall I do?, and is seen through our actions and expressed in the quotes from Aristotle and Addams at the beginning of this article. Kitchener has identified five moral principles that are viewed as the cornerstone of most ethical guidelines. Ethical guidelines can not address all situations that we are forced to confront, however reviewing these ethical principles can help clarify the issues involved in a given situation. The five principles, autonomy, justice, beneficence, nonmaleficence, and fidelity, are each absolute truths in and of themselves. By exploring the dilemma in regards to these principles one may come to a better understanding of the conflicting issues.

1. Autonomy is the principle that addresses the concept of independence. The essence of this principle is allowing an individual the freedom of choice and action. There are two important considerations in autonomy: clashing values and incompetent parties.

2. Nonmaleficence is the concept of not causing harm to others. Often explained as “above all do no harm”, it also reflects both the idea of not inflicting intentional harm, and not engaging in actions that risk harming others.

3. Beneficence reflects our responsibility to contribute to the welfare of each other. Simply stated it means to do good and to be proactive.

4. Justice does not mean treating all individuals the same, it means treating equals equally and unequals unequally but in proportion to their relevant differences.

5. Fidelity involves the notions of loyalty, faithfulness, and honoring commitments. We must be able to trust each other and have faith in our relationship if growth is to occur.

Co-existence of Principles

Principles can only provide guidance. There are a myriad of situations that will never lend themselves to an easy formula, and the principles can only be used to trigger our conscience or guide our decisions. As well, there are many times when principles will collide with other principles.

When exploring an ethical dilemma, you need to examine the situation and see how each of the above principles may relate to that particular situation. At times this alone will clarify the issues enough that the means for resolving the dilemma will become obvious to you. In more complicated cases it is helpful to be able to work through the steps of an ethical decision making model, and to assess which of these moral principles may be in conflict. If two or more principles are in conflict you need to decide which is the guiding principle.

Virtues Ethics

Virtues ethics answers the question, Who shall I be? One of the chief characteristics of ethical action is the premise that there are universal virtues that can help guide our choices. Underlying every principle is a virtue. Trust is the most common virtue and may be the foundation for all of the others. For example, trust is a fundamental aspect of confidentiality. Virtue Ethics answers the question: Who shall I be? Livingvalues.net has identified 12 virtues and principles shared by everyone they have surveyed, over 2500 communities and cultures around the world. The Livingvalues list of virtues and principles includes: Happiness, Honesty, Humility, Love, Respect, Responsibility (virtues), Cooperation, Freedom, Peace, Simplicity, Tolerance and Unity (principles). Virtues are the qualities of an individual, principles are the qualities of a community. All principles involve some sort of social exchange to be manifested. Once identified, these virtues and principles can then become the criteria for evaluating an ethical decision.

Ethics of the Mediator – Model Standards

Mediators are guided in their actions by the Model Standards developed by ACR, ABA and AAA. These principles are designed to help the mediator resolve practice related issues and should be used to clarify and define appropriate responses to most situations. The following is a comparison of ethical guidelines within specific professions. These written codes provide rules of conduct and standards of behavior based on the principles of Professional Ethics. Even when not written into a code, principles of professional ethics are usually expected of people in a professional capacity.

Ethics of the Parties – Community Norms

Parties in mediation have been unable to resolve issues to their mutual satisfaction. They may have done things which would be outside of what they consider acceptable behavior in their community. It is important to be aware of what the parties consider to be ethical behavior while keeping in mind our unified model of ethical guidelines. Personal ethics might also be called morality, since they reflect general expectations of any person in any society, acting in any capacity. One definition of culture says “culture is what every knows that everyone else knows.” These are the principles we try to instill in our children, and expect of one another without needing to articulate the expectation or formalize it in any way.

Principles of Personal Ethics include:

• Concern for the well-being of others, doing good (beneficence)
• Respect for the autonomy of others (autonomy)
• Trustworthiness & honesty (fidelity)
• Willing compliance with the law, with the exception of civil disobedience (justice)
• Basic justice; being fair (fairness)
• Preventing harm (non-maleficence)

In looking to globalize the issues for the parties and look at the situation from the broadest possible perspective, parties might want to consider what acceptable behavior in other cultures and communities, as well as their own. They might also want to consider their role in promoting better actions among people, in not doing what is expected but in doing what is better than expected.

Ethics in the Process – Ground rules

Ethics in the process is defined and maintained through the ground rules. Ground rules define appropriate ways of interaction. Ground rules are applying our principles to our actions, and reflect an agreed upon interaction for the parties. Ground rules typically would include full disclosure, good faith, speak openly, listen actively, respect one another, voluntary participation and confidentiality. As we have seen these principles are based on virtues such as trustworthiness, truthfulness, integrity and respect.

Ethics in the Outcome – Principled Decision Making

Ethics in the outcome is using virtues and principles to evaluate the available choices. This model can be used with any of the four ethical categories in this paper. It is a way to evaluate our options based on our values. How do we teach the skill of making positive choices? Mediation allows the parties the unique opportunity to work together to decide on a better future. Decision making criteria are the factors that differentiate one choice from another. They can include tangibles like time, people or money, questions like those listed below, virtues or principles mentioned above, or any combination. The criteria you choose will determine the quality of your action.

• Does it meet our values – virtues and principles?
• Does it improve the relationship of the parties?
• Would you be comfortable if your actions were publicized?
• Would you be comfortable if your family was observing you?
• Will it make you a better person?
• Would your decision withstand scrutiny?
• Does the decision show leadership through integrity, accountability and efficiency?
• Is your decision fair to yourself, family, colleagues, industry and community?

Rotary service clubs use a simple ethical decision making model to guide their actions.

1. Is it the TRUTH? (virtue)
2. Is it FAIR to all concerned? (principle)
3. Will it build GOODWILL and BETTER FRIENDSHIPS? (reciprocity)
4. Will it be BENEFICIAL to all concerned?”Getting to Yes say that any method of negotiation may be fairly judged by four criteria: It should produce a wise agreement, it should be based on , it should be efficient, and it should improve or at least not damage the relationship between the parties. (GTY, 4) Transformative Mediation says that a resolution should result in people not just being better off but better. In a world in which people remain the same, solved problems are quickly replaced by new ones (PM, 29).Ethical Decision Making Model

   1. Model Standards – reflect on the standards before and during the process and use the principles to guide your actions when uncertainty or confusion arises.

   2. Community Norms – what is acceptable in the community of the parties and what is acceptable on a larger scale? What are the values that underlie those actions?

   3. Ground Rules – work with the parties to devise a principled set of rules for their interaction. These rules should consider local and global norms as well as and reflect the foundation for a future agreement. The most durable rules are based on trust and honesty.

   4. Principled Decision Making – Identify decision making criteria, virtues, principles and reciprocity, and consider the potential consequences of all options in relation to those criteria. Use the matrix below to help evaluate your choices. In addition to principles, use tangible criteria like time, money and resources as criteria.

   In applying the test of autonomy, ask if parties are free to act outside of the control of the other. For justice, assess the fairness of the option. For resources, ask if the resources are available for this option. Finally, consider which options promote reciprocity. Are there obligations for both parties in this decision? Will this decision allow both parties to grow?

   If the course of action you have selected seems to present new ethical issues, then you’ll need to go back to the beginning and reevaluate each step of the process. Perhaps you have chosen the wrong option or you might have identified the problem incorrectly. The following matrix is one way to consider the principles in relation to the choices.

   Evaluation – How do we compare our options?

   Options Virtues/ Principles

   	Autonomy	Justice	Resources	Reciprocity*	Score
   A	–	–	–	–	-4
   B	0	–	–	0	-2
   C	–	0	0	0	-1
   D	+	–	0	0	0
   E	+	0	+	0	2
   F	+	+	+	+	4

   * see Reciprocal Negotiation article by same author

   A through F represents options available to resolve the issue. In the matrix above, all options are rated according to whether they promote (+), are neutral (0) or detract (-) from the principle. In other words option A actually decreases the party’s autonomy, is unjust, depletes resources and is not reciprocal. Likewise option F promotes all of the identified criteria. Until you have an option that is all pluses, you may not have found the best answer. There are many different ways to use this matrix to evaluate options, including assigning numerical values and allowing each party to assign the values.

   5. Action – Take the action decided upon. Ethical action is the result of value based decision making. As Jane Addams says in the opening quote “Action is the sole medium of expression for ethics.”

   6. Reflection – Reflect on the results of your action. What was the plan? What was the effect or outcome? What virtues or principles were demonstrated? Reflect on past decisions and compare outcomes with the consequences that were anticipated at the time of the choice. This step can help reinforce the practice of principle-based decision-making. It is important to realize that different professions may implement different courses of action in the same situation. There is rarely one right answer to a complex ethical dilemma. However, if you follow a systematic model, you can be assured that you will be consistent and able to give a professional explanation for the chosen course of action.

   I have been able to use this model several times. I used it with a division of a major pharmaceutical company with interesting results. I had been invited in to assist in implementing an employee empowerment program. As part of that program they were considering a decision making model. During my presentation I asked them to name two or three issues they were currently facing and to select one of those for discussion. We then generated options around that issue. Like many companies they had a corporate value statement and we selected the values from that statement for our criteria. We then filled in the matrix to evaluate our choices. The key is to find choices that address all of your values. The matrix always leads to an interesting discussion and in this case actually brought the corporate values statement to life.

                       

Trip Barthel

TRIP BARTHEL is the Founder and Executive Director of the Neighborhood Mediation Center in Reno, Nevada. Trip practices and teaches mediation and conflict resolution through the National Judicial< College, University of Nevada, Reno, and Truckee Meadows Community College. Trip has worked in Russia, China and India during the last 3… MORE >