Fairness v. Neutrality

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The “Rules” (What is known).

The Model Standards of Conduct for Mediators, (hereinafter Standards) prepared by the American Association Arbitration’s Section of Dispute Resolution and other organizations, is a good first referent to formally address the question. It is conceived as a fundamental ethical guideline for professional mediators. The original version drafted in 1994 was reviewed and improved in 2005 by participating organizations (American Arbitration Association, 2005).

By definition, mediation is a process aimed to help people to resolve conflicts in different settings, in which an impartial third party promotes collaboration, facilitates communication, and fosters reciprocal understanding of the parties as to negotiate positions, in searching for mutually satisfactory agreements, when desired and if possible (Golann and Folberg, 2011). Commonly, the process requires the identification and clarification of salient elements, necessary to understand different perspectives, interests, positions, values, needs, and principles. Dealing with these elements demands a full understanding of the meaning, relevance, and potential consequences of the final outcomes on the parties.  Some of them have a clear and direct application to the matter under consideration.

Standard I. Self-determination.

Interpreted in brief, the standard states that the mediator must conduct the process under a fundamental rule: the parties keep and may exercise uncoerced “self-determination” in every stage, but “free informed choices” are the principle under which both the process and the outcome must be carried (op. cit., p.3).

Standard II. Impartiality.

In short, this standard states that mediators are obliged to conduct the process free of “favoritism, bias or prejudice” (idem, p.4), both in the essence of their actions and in their appearance.

Standard VI. Quality of the process.

Section A.10, clearly states the mediator’s obligation to be sure that all of the parties are in “capacity to comprehend, participate and exercise self-determination”. To that purpose, the mediator “should explore the circumstances and potential accommodations, modifications or adjustments” to lead the parties as to accomplish the necessary precondition for making informed decisions and not only to act under the “self-determination” referent (idem, p.7).

Section B. impose an obligation to take “appropriate steps including, if necessary, postponing, withdrawing from or terminating the mediation” if the mediator “is made aware of domestic abuse or violence among the parties.” In a similar way, Section C. determines that same measures shall be taken if “participant conduct, including that of the mediator, jeopardizes conducting the mediation consistent with these Standards.”

In the Standards, the only reference to fairness is focused on the procedural component (Section A, op. cit., p.6). The compelled approach under “self-determination” and “informed decisions” asserts that the parties are the only responsible ones for the possible outcome. But, what if the power balance is notoriously charged on one side and the other party is prone to be abused, so be it under apparent knowledge or in supine ignorance? Shall mediators keep on bind only to the Standards and completely detached of the possible injustice or unfair action that may be happening under their guidance? How much effort a mediator must invest in trying to get all the parties fully informed before they make a decision? How can a mediator be sure that a notoriously or evidently unbalanced, impending outcome is really unfair? What is fairness? Does it exist in real life? Can fairness be a referent in the mediators’ actions? Are fairness and mediation mutually exclusive categories? Is there a moral obligation for mediators to go beyond the Standards’ limits as to promote more commitment to fairness than to neutrality?

On Ethics and the Mediation Profession (The analysis).

According to Deborah L. Rhode (1998, p. 12) “[I]n contemporary societies… philosophers generally consider ethics to be the study of morality and morality to involve principles of right and wrong. In popular usage, the terms are largely interchangeable…Ethics as a field of study has three primary branches: methaethics, normative ethics, and applied or practical ethics.”  The last one is concerned with applying normative theories to specific problems. It draws with moral dilemmas brought in particular contexts. In such a way, Legal ethics is a particular case of applied ethics.

In western societies, the advancement of common good ideal and the promotion of human welfare are the strongest drivers in public policies. Both principles are object of general use and universal application. For Rhode (op. cit.) “Christianity’s Golden Rule and Immanuel Kant Categorical Imperative are well-known illustrations.” The second one (Kant’s Categorical Imperative) in a formulation demands: “Act only according to that maxim… [which] should become universal law” (Johnson, 2013). Under this principle the moral point of view in most Western philosophy assumes as a universal value that their judgments are those that an impartial spectator would accept and generalize. Here is a key concept for mediator’s role, when perceiving -and realizing- that an unfair outcome is about to come (in part as a result of his participation in the process), a question must be arisen: is this outcome (and or the whole process pathway) acceptable for me? If I were in the position of the unpowered party, would I be willing to be guided by an “intervening” or “activist” mediator seeking of a fairer outcome? Should the mediator keep coldly detached of the outcome in spite of knowing the imperative moral rule to apply on the matter? Are the Standards a stronger or higher rule to follow when compared to universal moral principles?

Normative ethical theory proposes that morality can be addressed in terms of acts results or in the terms of the conformity of those acts to basic rights and duties (Cohen, 2004, p.137). From them, a categorical judgment can be drawn when referring to the “mediators’ outcome detachment” approach. In utilitarian terms, if the net result is generally and universally acceptable, then the detachment approach can be justified, but if it does not satisfy the antecedent conditions, does it still remain valid to be detached?  Does virtue play a role in the mediator’s decision as to just minimally comply with the Standards and not go for the superior moral category? Reframing the previous question, Is a mediator satisfied by merely fulfilling the “self-determination” rule, in spite of being aware of a notorious and unmistakable unfair outcome? Can be a mediator a cooperating agent in one party’s perpetrating evident unfair actions on the other party and remain satisfied with his or her actions?

For some ideal utilitarian thinkers Like G.E. Moore, the good to be maximized is defined as encompassing not simply individuals’ subjective happiness but also objective conditions such as freedom, knowledge, beauty, fairness of resources distribution, and capacity for individual self-realization (Driver, 2009). In such a view, are these referents acceptable general and universal principles? Can they be applied as a moral framework for the mediation process? Do they deserve at least some reasoning and consideration in the private mediator’s mental analysis during the process? In my opinion, mediation arena seems to be particularly appropriate to apply an ideal utilitarian value system, because it runs “on the shadow of the legal system” (Moffitt and Bordone, 2005) standing close enough to the core legal principles but not limited to or coerced by them. If the decision remains and shall be made by the parties and only the parties in the mediation process, the mediator’s facilitative role can be guided by a superior moral referent as to try to promote an agreement that satisfy not only the evident cause and goal, reaching a lasting agreement, but also a more fulfilling one, a mutually satisfactory one under a universal value system, by adding -when needed- a new criteria to lead the outcome seeking: justice (“treating individuals in similar circumstances similarly and respecting just distributional principles”) (Rhode, 1998, p. 24). In more than a way, mediators’ are morally responsible, partially at least, of the consequences of the process outcome. The Standards cannot be used as an immunity shield for their conscience when facing grossly inequitable or misinformed agreements. Recommending counselor advice for the parties is not enough and does not guarantee that the weakest party will be in capacity for full understanding. Autonomy, self-determination, and neutrality are principles that tend to protect and justify the empowered party, in detriment of the weaken one (Bush and Folger, 2005).

There is a general understanding that “lawyers duties are to their clients, not the process” (Fox, 2002), but when protecting the best interest of their clients, the potential enforceability of the agreement generated as an outcome in the mediation process must be seriously considered. If the final purpose is to reach a lasting agreement, is clear that the fairer the distribution of benefits or damages in the agreement, the greater the chances are for a fully implemented resolution. What is the value of getting a notoriously unfair outcome if it can be later rejected and put the parties in the conflict arena again? The third neutral participant has the best stance and clearer vision as to make a reasoned analysis of the potential effects of a foreseeable outcome. It is the privilege of the mediators to decide when, why, and how to intervene to clarify subjects that may lead to a morally unacceptable agreement. Even though the mediators are meant to remain neutral, they have a superior driver to attend: conscience, the inner referential system that compels everyone to do and pursue what is right and to deter what is wrong.

The principle of parties’ self-determination is the most fundamental in mediation and complemented only with “voluntary” and “informed” party’s decision-making. Nevertheless, subtle but significant differences are stipulated in various referents. The Model Family Standards are more emphatic stating that the mediator “should inform the participants that the may seek information and advice from a variety of sources during the mediation process” and in describing “the primary role” of the mediator in the mediation process, stating that is “to assist the participants to gain a better understanding of their own needs and interests and the needs and interests of others and to facilitate agreement among the participants” (Alfini, 2002, p.73). In this case, it is evident that mediators have a wider field for intervening in procuring the best possible outcome. Fairness to the process can be complemented with awareness of impending outcome unfairness. There is certainly a very thin line, but the professional mediator can identify it and keep on being neutral, while fostering a more equitable outcome (Reuben, 1999). As in any other human value-referenced analysis, subjectivity is a crucial factor, but not a condition to refrain or curtail the moral obligation of trying to clarify -in the most convenient way- the mind of the oppressed and ignorant people. By satisfying these elemental criteria, the neutrality commandment is overrun and the fairness promoter called into action. Common tools and opportunities for mediators interventions are agenda structuring, asking purposed questions, reframing issues, educating parties, timing and pacing the process, managing tempers and emotional environment, hypothetical mediator offers, confidential listener, precedents and similar cases references, and several more.

The moral mediator’s dilemma is based on an apparently dichotomous and mutually irreconcilable decision to make: approaching the mediation process solely as a facilitated negotiation in one hand, or as social opportunity for promoting better outcomes for both of the parties and the society, based on a principle of procuring justice (better balanced, fairer outcomes), on the other hand. But, the apparent dilemma could be interpreted as a false dichotomy in the sense that the categories are not discrete entities with absolute values, but members of a dispute resolution continuum that goes from the identification of the conflict itself, by a naming, blaming, and claiming process, to the final possible legal solution in a litigated course decision. The dilemma is not to opt for a “lasseiz-fair, lasseiz passer” stand, just letting the parties to reach the agreement that they are willing to make under the principle of self-determination under a full informed decision, or becoming and “activist”, by taking sides as an equalizer in a perceived unjust power relationship and abusive potential outcome from the mediation, damaging the legitimate interests of the weak party. Under the dispute resolution processes continuum approach, mediator’s can based their roles and interventions in specific mediation cases and conditions under the guidance of a moral principle referent, trying as hard and as professional as possible, to empower the weak party through legal and practice-approved referents (Daicoff, 2011, p. 185). Mediation can be, and it is particularly suitable for a smooth transitional phase between decision-making processes coming from the parties, as in negotiation, and decision-making process determined by a third party neutral, as in arbitration.

Several conditions can justify mediator’s intervention to procure a better-balanced outcome in a notoriously skewed process.  Satisfying at least three of them are enough for a mediator to morally justify a more active intervention in the process. First, when educating the ignorant party is not enough, because the evident result in understanding capacity is unsatisfactory; second, when assuring that the weak party has received legal counsel and representation, but the performance result is notoriously inconvenient; and third, when figuring out that the weak party is supposedly fully understanding the consequences of the decision to make, but the evident effect perceived by a reasonable person, mediator included, is in frank opposition of the notion of fairness and equity. It is fundamental to note that the principle of self-determination in the mediation process is relational in nature, only feasible and understandable in reference with the other party. “Relational party self-determination is achieved, then, where both parties are supported in reaching an integrated solution to their dispute, and where the outcome can be said to respond to each party’s concerns, needs and interests –not just those of one party. Relational party self-determination cannot exist on an individual level; it exists at a level that enables mediation process to be just to all parties. If only one party achieves self-determination, the mediation process has failed” (Field, 2011, p. 197).

Also, it is essential to recognize that the legal profession is inscribed on an ethical context and not only bond to formal legal codes and rules. Mediation is a social tool to settle legal disputes in more expedite and efficient ways that is accessible and convenient for greater number of people, but entails considerable risks when dealing with notoriously power unbalanced parties. Rhode and Hazard (2002, p. 75) highlight studies showing that “… the odds of employers winning in ADR proceedings with employees were five to one. Only repeat players had incentives to investigate the past records and predispositions of ostensibly neutral decision makers, and some decision makers, and some of those decision makers had incentives to please sources of business. So too, mediation between parties with unequal power may reinforce their inequality and encourage negotiation of rights that should be non-negotiable. Cases involving domestic violence pose particular risks.” Trina Grillo published several studies showing skewed outcomes and actual damages for women and minorities as a result of mediation processes (1991, 1996), and fostering a reactive participation of mediator’s as to assure the fairer possible outcome on a defined context, not by leading, but by insistently and determinately asking the necessary questions to empower the weak ones in the relationship. Some authors refer this approach as a public interest and social justice one.

Power imbalances in mediation have been addressed by Agustí-Panareda (2010, p. 153) by questioning some common assumptions, among them, the following are relevant for this paper: First, the belief that the outcome is a function of the parties’ resources; second, the perception of equal power as necessary for a fair mediation; third, the notion that stronger parties impose their will on weaker parties, and fourth, the assumption that power means control and influence. Even for those who consider that a mediator must not intervene in determining the possible outcome, “power relations between the parties inevitably will be transformed by the presence of a mediator” (op. cit. p. 161). The same author affirms: “the dynamics of power in a particular dispute greatly depend on the context. Mediation provides an especially suitable environment in which to deal with power differentials… it aims to avoid the negative consequences of power imbalances and offers safeguards to power abuse.” Analyzing power in negotiation, Roger Fisher (1991) proposes as definition “the ability to affect favorably someone else’s decision” and identifies “the power of legitimacy” as one of the six main categories of power involved in a negotiation or solving a dispute. Its influence and force is described in this way: “[E]ach of us is subject to being persuaded by becoming convinced that a particular result ought to be accepted because it is fair; because the law requires it; because it is consistent with precedent, industry practice, or sound policy considerations; or because it is legitimate as measured by some other objective standard.”

The argument is then, if the mediators have a deontological duty (concerning whit what is right or wrong) during the mediation process. If so, they have the obligation to verify that requirements of universalization, generalization, and respect for others are fulfilled before reaching the final agreement. Such obligations “typically include duties of fidelity (keeping promises, avoiding deception), duties of benevolence (helping others and avoiding harm), and duties of justice (treating similar cases similarly)” (Rhode and Hazard, op. cit. p. 5).  The framework for these obligations is eminently moral in the broad sense and imposes on mediators a higher standard and stronger commitment for their role. Therefore, the question should not be to intervene or not to intervene, but what would be the best way to do it to become a fair leader in the mediation process, seeking for the fairer possible outcome, without violating the guiding Standards that rule the practice. It is not a matter of being “an agreement dealer”, but a public interest agent cooperating in restructuring and strengthening the social fabric. It is not a matter of being only efficient in a business way, but of being a member of the community who represents the best communal interests in every case, in every action taken, in every decision making, especially those in which he or she is not the one who decides, but exert a deep impact on other people lives’. In an extended meaning, mediators serve a function as custodian of law and the public interest and be aware that not all cases must be settled (Holmes and Rice, 2005, p. 69).

Should the mediator keep cold and distant in the process and just help things to keep on flowing? Or, in the opposite pole of the continuum, has the mediator a social and moral duty to intervene in the process as to promote the best possible and fairer outcome?  Meankel-Meadow, Love, and Schneider have sated the question in this form: “Are the attorney representatives or mediators ‘responsible’ for their actions toward others in the mediation?”  For me, the answer remains in the conscience of the mediator. As a distinguished professor use to tell his students: “it is up to you” and “it depends [on the context]”. My answer for both of them is in favor of a professional, ethically supported intervention if and only if circumstances and conditions in the case mediation process so demand it.  In accordance with this stance, several authors promote a “contextual ethical method in mediation”, in which, “… two critical arguments support a non-rules-based approach to ethical decision making in mediation that aims to uphold relational party self-determination. First, a contextual, discretionary approach frees mediators to respond to the individual imperatives, requirements, and characteristics of each particular mediation, and the relational needs and interests and interests of the parties. The freedom to take an ‘open-ended approach to situations’ is… that which makes real ethical decision-making possible” (Field, 2011, p. 201).

According to Cloke (2001, p. 13), “[T]he language of neutrality creates an expectation that mediators will act fairly once they erase their own past experiences. But real fairness comes from using the past to gain an open, honest, humble perspective on the present… [W]hen confronted with something unique, or with paradox, contradiction, or enigma, a stance of neutrality makes us incapable even of observing without denying or destroying the very thing being observed, which is often a conflict that is riddled with paradoxes, contradictions, and enigmas.” Additionally, conflict is a generator of distrust, polarized positions, and passions that lead parties to ask for reasonable people to stand by their side. Even though a mediator can try to remain detached, is in human nature to feel attracted to one story or to move away from the other, partially at least. In such circumstances, is the necessity of the appearance of neutrality what mediators most commonly look for. They struggle to find a way to interpret the elements from both stories being told in an empathic way as to connect them and be helpful to the parties for transcending the conflict.

Can a mediator really be neutral and impartial during the mediation process? My answer is no. There are no cyborgs, or robots in the mediation arena yet. Thinking and reflecting about new information and knowledge is a natural automatic process.  Can a mediator remain impartial in action? My answer is yes, by deciding not to intervene under any value system or analytical category, objectively or subjectively applied or ignored. Is it justifiable for mediators to decide not to intervene when their conscience tell them that they should do something to prevent or stop a notoriously unfair outcome? That is the question.

A Contextual Ethical Approach (The Conclusion).

Is there a code for contextual ethics intervention as to practically lead mediators in seeking for fairness in the mediation process? The answer is yes, but is only a proposed one and needs the support from a stronger mediation professional community. Rachel Field (op. cit.) has put forward possible guiding principles for contextual ethical mediation. 1:  Relational self-determination is the intrinsic good of mediation and its ruling norm.  2:  Ethical decision-making to uphold relational party self-determination is relative and relational. 3:  Ethically upholding relational party self-determination leads to just outcomes. 4:  Mediators must be professionally accountable for upholding relational party self-determination. Proposing a contextual ethical approach is not a matter of going into “a system of ‘anything goes’ decision making, but rather would offer a new, higher order, principled, accountable ethical method that enables the parties to reach just outcomes” (Field, op. cit., p. 210). One of the most respected and solid group of authors in the field, conclude their ethical analysis on Resolving Disputes: Theory, Practice, and Law (Folberg, Golan, Stipanowich, and Kloppenberg, 2010, p. 533) by stating that the role of a mediator is “inherently somewhat ambiguous in that she has obligations toward both sides in disputes as well as to the process itself, and ethical standards for mediators tend to be quite general. This leaves even conscientious neutrals in doubt about what to do in particular situations. We hope to have convinced you that being an ethical mediator or lawyer is a process of continuing self-examination rather than simply a matter of learning a set of rules, and that you will continue to explore this issues for the rest of your professional life.”

The last quotations can be helpful for emphasizing my standing position for a more active role toward the fairness component element in the equation dilemma under analysis in this paper: “Neutrality can paralyze emotional honesty, intimate communication, vulnerability, and self-criticism. It can undermine shared responsibility, prevention, creative problem-solving… It can ignore the largest systems in which conflict occurs. It can fail to comprehend spirit, forgiveness, transformation, or healing, which are essential in mediation. As a result, it can become a straitjacket and a check on our ability to unravel the source of conflict” (Cloke, op. cit., p. 14).

Apparently, the Standards are meant to help mediators to promote conflict suppression and settlement, instead of conflict resolution, by recognizing that the former ones can lead to tolerance and acceptance for injustice as an outcome, as long as that outcome is accepted for both parties. The latter, conflict resolution, “requires mediators to equalize the negotiation power of disputing parties, fully surface underlying concerns, encourage equal ownership of outcomes, negotiate collaboratively, and fix systems rather than people” (Op. cit, p.17).

References

Agustí-Panareda, J.  (2010). Power Imbalances in Mediation: Questioning Some Common Assumptions. In American Arbitration Association, Handbook of Mediation. JuristNet , LLC. Huntington, NY.

American Arbitration Association, American Bar Association, and Association for Conflict Resolution. (2005). Model Standards of Conduct for Mediators. Available from: www.usgs.gov/humancapital/cm/…/core_mediators_of_conduct.doc

Bush, R. A. B., & Folger, J. P. (2005). The promise of mediation: The transformative approach to conflict. San Francisco: Jossey-Bass.

Cloke, K. (2001). Mediating dangerously: The frontiers of conflict resolution. San Francisco: Jossey-Bass, p. 14.

Cohen, S. (2004). The nature of moral reasoning: The framework and activities of ethical deliberation, argument, and decision-making. South Melbourne, Vic., Australia: Oxford University Press.

Daicoff, S. S. (2011). Comprehensive law practice: Law as a healing profession. Durham, N.C: Carolina Academic Press.

Driver, J. The History of Utilitarianism, The Stanford Encyclopedia of Philosophy (Summer 2009 Edition), Edward N. Zalta (ed.), URL = http://plato.stanford.edu/archives/sum2009/entries/utilitarianism-history/.

Field, R. (2011). Exploring the Potential of Contextual Ethics in Mediation. In Bartlet, F., Mortensen, R., and Tranter, K.  Alternative Perspective on Lawyers and Legal Ethics. Routledge Research in Legal Ethics. New York, NY.

Fisher, R. (1991). Negotiating Power: Getting and Using Influence. In  Breslin, J.W. and Rubin. J.Z. (Eds). Negotiation Theory and Practice. Cambridge: PON Books, pp 115-122.

Folberg, J., Golan, D.,  Stipanowich, T., and Kloppenberg, L. (2010) Resolving Disputes: Theory, Practice, and Law. Aspen Publishers, New York, NY.

Fox, L. (2002). Mediation Values and Lawyer Ethics. In Bernard, P. and Garth, H., Dispute Resolution Ethics: A comprehensive guide. Chapter III. American Bar Association, Washington, D.C.

Golann, D., & Folberg, J. (2011). Mediation: The roles of advocate and neutral. New York: Aspen Publishers.

Grillo, T. (1991). The Mediation Alternative: Process Dangers for Women. Yale L.J. 1545.

Grillo, T. and Wildman S., (1996). Obscuring the Importance of Race: The Implications of Making Comparisons Bewtween Racism and Sexism (or Other Isms). In Wildman S., How Invisible Preferences Undermine America. New York University Press, NY.

Holmes, V., and Rice, S. (2011). Our Common Future: The Imperative for Contextual Ethics in a Connected World. In Bartlet, F., Mortensen, R., and Tranter, K.  Alternative Perspective on Lawyers and Legal Ethics. Routledge Research in Legal Ethics. New York, NY.

Johnson, R. (2013). Kant’s Moral Philosophy. The Stanford Encyclopedia of Philosophy (Winter 2013 Edition), Edward N. Zalta (ed.), forthcoming URL = http://plato.stanford.edu/archives/win2013/entries/kant-moral/.

Menkel-Meadow, C., Porter, L., and Schneider, A. (2006). Mediation: Practice, Policy, and Ethics. Aspen Publishers. New York, NY.

Moffitt, M. L., Bordone, R. C., & Program on Negotiation at Harvard Law School. (2005). The handbook of dispute resolution. San Francisco, CA: Jossey-Bass.

Reuben, R. (1999). The Bias Factor. California Lawyer, Nov. 1999, p. 25.