Mediation and Ethics Consultation: Towards a New Understanding of Impartiality

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Winning Essay in the Graduate Student Category
2001 James Boskey ADR
Writing Competition. The competition is Sponsored by the ABA Section of Dispute Resolution and the Association for Conflict Resolution.

“The orchestration of moral collaboration
[required in ethics consultation] will be complex. Parties will share morally
problematic situations but may have different senses of what is relevant and
understandably different personal stakes. The ethicist has special
responsibility to enliven a process in which these common moral concerns stay
in focus while differences are recognized and, ideally, mediated.”

—Margaret Walker,
1993, p. 39.

Abstract

Mediation has received considerable
attention in the bioethics literature on ethics consultation. The recent
consensus report Core Competencies for
Health Care Ethics Consultation issued by the American Society for
Bioethics and Humanities acknowledges positive benefits of mediation training.
In times when moral consensus in the most intractable of cases is not possible,
mediation or other conflict resolution strategies might help the parties reach
a resolution. Moreover, mediation training can help ethics consultants achieve
mastery of the interpersonal elements of ethics consultation. However, to argue
that mediation can be appropriately adapted as an ethics consultation modality
is a more controversial matter. This paper surveys the bioethics literature
regarding the role of mediation as a consultation modality and presents
criticisms levied against bioethics mediation. The strongest criticisms concern
the supposed neutral or impartial stance mediators must take to the conflicts
in which they intervene. Such impartiality is either not appropriate for ethics
consultation or it is impossible to achieve, opponents of bioethics mediation
argue. In defense of the role of mediation in ethics consultation, I argue that
these two strong criticisms can be overcome by suggesting a new understanding
of impartiality for ethics consultation that comports with the approach posited
in Core Competencies. Thus, if
impartiality only extends to the parties and their values, not to the norms
used to reach the outcome, mediation as a stand-alone consultation modality
represents a viable option.

Mediation and Ethics Facilitation

Mediation has received
considerable attention in the bioethics literature on ethics consultation. The
recent consensus report Core Competencies
for Health Care Ethics Consultation (hereafter Core Competencies) issued by the American Society for Bioethics and
Humanities (ASBH) acknowledges positive benefits of mediation training.
Consensus in intractable cases may not be possible. In this event, Core Competencies (1998) suggests
“mediation or other conflict resolution techniques…can often help involved
parties come to a mutually agreeable solution” (p. 8). In addition, “formal
training in specific techniques such as mediation…is one way to obtain advanced
interpersonal and process skills” (ASBH, 1998, p. 16).

Mediation
refers both to a process and a set of conflict resolution skills. The mediation
process traditionally features mediator impartiality or neutrality,
confidentiality of the proceedings, an opportunity for parties to voice their
concerns without interruption, and mediator-guided problem-solving, option
generation, and option assessment (Hoffmann, 1994a). The goal is a feasible,
joint agreement balancing the concerns that originally brought the parties to
mediation.

Ethics facilitation, the approach endorsed in Core Competencies, involves two stages.
The first involves fact gathering and sharing from chart reviews and
interviews, followed by consultant use of bioethics knowledge and concepts to
generate a range of ethical options for resolving the conflict or uncertainty.
The second stage allows participants to voice their concerns about the options.
Ethics consultants then use interpersonal facilitation skills to clarify
participants’ values and views regarding the options and builds consensus for
the selection of one option.

The stages of mediation follow a sequence similar to
ethics facilitation. Before identifying and analyzing the conflict or
uncertainty that has brought the parties to mediation, mediators explain the
mediation process and its ground rules. Then, mediators listen attentively to
each parties’ perception of the conflict or uncertainty and use communication
techniques to acknowledge emotions often underlying interpersonal conflicts.
Such a stage allows the building of rapport and empathy, first between the
mediators and the parties, then, hopefully, between the parties themselves.

Mediation as an Ethics Consultation Modality: A Survey of the Bioethics Literature

The bioethics literature makes
several references to the role that mediators, the mediation process, or
mediation skills play in resolving bioethical problems.[1]
Despite its prevalence in the ethics consultation literature, few sources argue
that mediation can serve as a stand-alone consultation modality. Nancy Dubler
and Leonard Marcus (1994) outline such a model in their book Mediating Bioethical Disputes: A Practical
Guide.

Like
traditional configurations of the mediation process, Dubler and Marcus argue
that a bioethics mediator must be impartial. The goal behind bioethics
mediation is to help transform parties’ initial positional stances to a
conflict or uncertainty into shared opportunities for dialogue and resolution.
Dubler and Marcus argue that impartiality—where the mediator does not favor any
particular parties’ position—facilitates this transformation. The goal of
mediation should be a consensus solution, generated in light of common
interests and in comportment with established and recognized ethical and legal
standards.

Of the four mediation stages,
the second focuses on narrative. Mediation participants relate their
perspective of the situation in their own words and without interruption. The
mediators acknowledge any emotive content in such narratives and use
communication techniques like active listening or mirroring to represent the
substance of the narrative to other participants. The goal is to ensure that
all parties have an adequate understanding of the situation, that all parties
have a comprehensive account of “the facts” as each of them understands them,
and that the mediator has made the parties comfortable expressing their views
and concerns.

An interesting literature has
emerged focusing on narrative in moral thinking. Stories provide robust
descriptions of our moral experiences, blending emotion, rationality,
perception, and judgment into one corpus. One article in particular, Margaret
Walker’s (1993) “Keeping Moral Space Open: New Images of Ethics Consulting,”
relates narrative in ethics consultation to mediation. Unlike Dubler and
Marcus, Walker does not posit a model of ethics consultation based on
mediation. Rather, she argues that morality is best described as the exchange
and mutual understanding of often divergent moral narratives. Morality thus
becomes less concerned with theories and their application to specific cases
and more with establishing “a medium of progressive acknowledgement and
adjustment among people in (or in search of) a common and habitable moral world”
(Walker, 1993, p. 35). The ethics consultant acts as an architect of the moral
space where such a search can take place and a mediator of the divergent moral
narratives within such space.

Criticisms of Bioethics Mediation

Bioethics mediation supporters,
like Yvonne Craig (1996), tout that mediation enhances patient autonomy. The
reason concerns the impartial stance mediators take to disputes. Impartiality,
Craig argues, empowers participants and encourages moral ownership of the
problem. The claim of impartiality, however, has received significant
criticism. Opponents argue that bioethics mediation is an inappropriate method
for resolving particular clinical problems because the neutral or impartial
role of the mediator is either not appropriate for ethics consultation or
impossible to achieve.

The Façade of Mediator Neutrality and
Impartiality.

Giles Scofield argues that ethics consultation should not be
considered a profession, and thus efforts at professionalization should not be
attempted. His rationale for this claim concerns an inability of ethicists to
articulate, teach, test, and certify what amounts to ethical expertise. In
addition, Scofield believes that ethics consultation, because it assumes that
its practitioners somehow have the market on moral expertise, represents the
antithesis to the democratic understanding of morality—that all persons are
moral equals.

Scofield
cites Walker as a scholar who seems to share his criticism regarding the
inappropriateness of ethical expertise. Instead of suggesting that ethicists
are experts or ethical engineers who master code-like theories and use this
knowledge to solve moral problems for their owners, Walker proposes the idea
that ethics consultants should be regarded as architects or mediators. Their role
is not to solve moral difficulties for the parties experiencing them, but
rather to create moral space where conversations can occur. Such a role should
uphold and operationalize a commitment to moral pluralism—that all persons are
moral equals. Moreover, it would emphasize the role of narrative dialogue and
conversation above any expertise in moral theory the ethicist brings to the
consultation.

Nevertheless, Scofield criticizes
Walker’s mediator role. He argues that the consultant’s role as a mediator
seems objective and impartial, but it is not. The mere involvement of the
consultant violates any notion of objective neutrality: “It is impossible to
mediate a discussion without affecting, even influencing, it. …[W]e should not
delude ourselves into thinking that they [ethicists] do not, cannot or will not
influence how others discuss and deliberate ethical dilemmas” (Scofield, 1993,
p. 20). In essence, Scofield objects to the implicit moral superiority inherent
in casting ethics consultants as architects or mediators. Both still presuppose
some sort of ethical or conversational expertise, he argues, which “is hardly a
benign claim. If consent is the essence of democracy, and conversation is the
essence of consent, then the ethics consultant’s claim is that some individuals
know better than others what needs to be said and how conversations ought to
proceed” (Scofield 1993, 20).

The Paradox of Neutrality or Impartiality.

Author Diane Hoffmann
takes Scofield’s criticism one step further and suggests that the supposed
neutrality or impartiality of the mediator poses a paradox for its use in
ethics consultation. Not only is impartiality impossible to achieve, it is not
appropriate for ethics consultation.

Hoffmann argues directly against
authors who suggest mediation enhances patient autonomy. If mediation enhances
autonomy, Hoffmann posits, then the participants should be the primary
decision-makers. The mediator should both refrain from inputting values into
the debate and not force participants to use outside norms to reach agreement.
Since mediators cannot help but shape the discussion with their own values, and
bioethics mediation, in particular, must use relevant norms from ethics,
policy, and the law (Scofield, 1993; Dubler & Marcus, 1994; Hoffmann, 1994b;
Waldman, 1997a; Waldman, 1997b), then the argument that mediation enhances
autonomy does not hold.

Traditional mediation, Hoffmann argues, attempts to
place the decision-making onus on the participants by eschewing reliance on
outside norms and by ensuring the neutrality of the mediator. The principles
and rules of justice governing legal and civil interaction between persons are
suspended in mediation and the parties are free to create their own
understandings of such principles and rules. Neither are appropriate for ethics
consultation, however. Core Competencies
suggests that a pure facilitation (or a pure mediation) approach might yield a
consensus that falls outside of culturally enshrined and socially acknowledged
ethical and legal limits. Such criticisms seem to doom mediation from playing
any appropriate role in ethics consultation.

The Use of Norms in Bioethics Mediation: A New Understanding of
Impartiality

Three Types of Norm-Based Mediation.

On the basis of her critique
of using mediation to resolve certain ethical conflicts, Hoffmann asks about
the appropriate place of norms in mediation. Mediation, traditionally
structured and practiced, presupposes that participants will generate the norms
that will constrain the options and solutions to resolve a case. Ellen Waldman
(1997a; 1997b) terms such traditional mediation norm-generation. She contrasts
norm-generation with two other norm-based approaches to mediation:
norm-education and norm-advocation. These three forms of norm-based mediation
help to distinguish several subtypes of impartiality, one of which comports
with the ethics facilitation approach promulgated in Core Competencies.

Waldman argues that
norm-generation has its place in mediation and in bioethics. Some bioethical
conflicts or uncertainties involve cases where no norm yet exists to guide
resolution. Waldman points to futility disputes as an example. In contrast,
norm-education involves educating the parties regarding the legal and ethical
norms at stake, but allows the parties to judge how to apply or interpret such
norms. Waldman argues that rarely is norm-education useful for mediating
bioethical disputes. It would be inappropriate to educate the parties regarding
a consensus norm in bioethics, but then tell them either to feel free to
interpret it how they want or to disregard it altogether. Finally,
norm-advocation involves educating the parties regarding the relevant legal,
social, and ethical norms, but the mediator urges the inclusion of particular
norms in the resolution.

Norm-advocation seems to mirror
the stance in Core Competencies that
consensus cannot be reached if it does not fall within a socially accepted
range of ethical options. Moreover, norm-advocation seems to involve
constraining the “substance” of agreements to ensure not only the fairness of
the outcome (Hoffmann’s worry) but also accomplishes it in such a way that does
not violate the autonomy of the participants or the democracy of the process
(Scofield’s worry). Thus, while norm-advocation might be appropriate for
bioethics mediation, norm-education is certainly not, and norm-generation, the
traditional structuring of mediation, has limited utility.

The Use of Norms in Bioethics Mediation and a Parallel in Ethics
Consultation.

Hoffmann argues that end-of-life disputes in particular ought
not be resolved by traditional applications of mediation. First, mediation
presupposes that all parties are competent to negotiate. In end-of-life
disputes, often the party whose interests are the subject of the mediation is incapacitated
or incompetent and cannot participate. Thus, Hoffmann worries that no one in
mediation will be properly able to represent the values of the patient and
negotiate in good faith on his or her behalf. Mediation may not be able to
ensure the adequate protection of the patient’s rights, she argues.[2]

Hoffmann’s worry regarding the
use of norms in mediation has a correlate in ethics consultation. The bioethics
literature has debated several questions related to the appropriate use of
norms in ethics consultation. Should ethics consultants be patient advocates
and ensure the protection of patients? Should ethics consultants make
recommendations or merely provide moral advice? If ethics consultants make
recommendations, should they stem from well articulated and supported personal
positions or should they represent consensus opinions from the bioethics
literature?

Core Competencies clearly argues that ethics consultants should not
advocate for any one party. Such a role clearly violates the consultant’s
facilitative role. Rather, ethics consultants should strive to ensure the equal
protection of all parties’ rights and interests by balancing power, ensuring
effective communication, and facilitating divergent moral views.

That ethics consultants should not
advocate for any party suggests ethics facilitation requires a type of
impartiality towards the parties and their values. Impartiality, in this sense,
operationalizes an explicit respect for moral pluralism by not privileging any
one set of values. Construing impartiality as limited to the parties and their
values and preferences provides an answer to the second question above.
According to Core Competencies,
ethics consultants can and should provide recommendations, but in two very
different senses. The result of the first stage of ethics facilitation should
yield several ethically justifiable options. These are, in effect, the options
that ethics consultants could recommend. However, ethics consultants do not
have to recommend that specific options be implemented. The only admonition Core Competencies provides is that
ethics consultants should make it known when they are recommending particular
options, especially when such recommendations incorporate the consultants’
personal moral views. Disclosure will lessen the tendency such recommendations
have to impose the consultant’s values on the parties and so usurp their
decision-making authority and responsibility.

Core Competencies does not use the language of impartiality or
neutrality to describe the role of norms in ethics facilitation. Nevertheless,
its warning that ethics consultants be conscious of the influence of their
personal moral views on the consultation outcome, coupled with its focus on
participant decision-making ownership, suggests that ethics facilitation
implicitly utilizes norm-advocation. If consultants do indeed recommend
particular options, already determined to be ethically sound, they are
advocating that particular norms determine the consultation outcome. The only
proviso is that how such norms are
advocated be made explicitly clear—consensus norms from the bioethics
literature or personal moral views. Imposing one’s own values seems in direct
violation of the facilitative role Core
Competencies outlines. However, norm-advocation does not impose one’s
personal values but rather socially and ethically enshrined values. A clear
example concerns situations where the options generated are not ones the
consultant would have generated or chosen, but they accord with acknowledged
ethical and legal standards.

The challenge for consultants,
then, becomes how to avoid imposing their values or seeming to do so by
advocating for particular norms to decide the consultation. Strict impartiality
is inappropriate for ethics consultation, but how does norm-advocation uphold
the sort of impartiality to the parties and their values required by a
commitment to moral pluralism? An answer to this question can be found by
turning to one of the first publications to articulate the use of bioethics
mediation, Dubler and Marcus’ Mediating
Bioethics Disputes. These authors unknowingly posit norm-advocation as the
goal of bioethics mediation.

Dubler and Marcus (1994) argue
that the goal of bioethics mediation is a “principled solution”—a solution
generated through application of the mediation process that both respects the
interests of the participants but also accords with consensus ethical and legal
standards (p. 34). A principled solution is Dubler and Marcus’ answer to the
problem of pure facilitation discussed in Core
Competencies. In order to protect against facilitated or mediated
agreements falling outside of socially determined legal and ethical boundaries,
agreements using bioethics mediation must not represent applications of pure
norm-generating mediation. Ethical and legal consensus, where they exist,
should guide the resolution in such a way that the ethical and legal norms
match the expressed and articulated values of the parties. Where such norms do
not exist, perhaps applications of norm-generation bioethics mediation may be
appropriate, as Waldman suggests.

Conclusion:
Overcoming the Problem of Impartiality

Both Scofield and Hoffman argue
that mediator impartiality is a façade. The use of norm-advocation, which seems
most appropriate for bioethics mediation, violates the strict impartiality of
the mediator. Like Scofield claims, in order to ensure the integrity of the
outcome, the mediator must advocate that certain values or norms take
precedence in the consultation. Thus, while the mediator might appear
impartial, advocating that certain values should help decide the matter not
only usurps the democratic ideals behind traditionally structured
norm-generating mediation but also makes the mediator’s supposed impartiality
disingenuous.

I argue that we need to
reconstrue impartiality. Scofield and Hoffman seem to contend that a mediator
must be impartial or neutral to both
the parties and the values or norms
used to resolve the dispute. Ethics facilitation requires that consultants be
impartial to the former, but not the latter. Thus, impartiality towards the
parties—not favoring or advocating for one particular party—supplies an
appropriate context for a form of impartiality in ethics consultation. Ethics
facilitation clearly mandates that ethics consultants not impose their own
values on the participants. In essence, a commitment to moral pluralism
requires that the ethics consultants be impartial towards the participants,
their values and preferences, and even the options generated, so long as they comport
with established ethical and legal norms. However, ethics facilitation requires
partiality towards the outcome—the decisions reached must accord with (or at
least not violate) socially, ethically, and legally recognized standards. Thus,
the ethics consultants cannot be impartial to the outcome or to the norms used
to reach that outcome. These distinctions between three subtypes of
impartiality—towards participants, towards outcome, and towards norms—indicate
that Hoffmann and Scofield have conflated the notion of impartiality in their
analyses.

Although the paradox of
impartiality might apply to traditionally structured mediation, the paradox
lacks applicability to norm-advocation bioethics mediation and the use of
mediation processes and skills in ethics consultation. Ethics facilitation
requires that no one person’s moral values or interests be accorded privileged
status. The attempt to reach consensus in ethics facilitation represents a
blending designed to uphold impartiality towards the parties and their values
but also comportment with recognized ethical, legal, and clinical standards.
Mediation modalities that incorporate norm-advocation, but eschew impartiality
towards outcome and norms, comport with ethics facilitation and thus could
serve as stand-alone ethics consultation processes.

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