ETHICAL CHALLENGES FOR

MEDIATORS

Professor Mary Anne Noone & Dr Lola Akin Ojelabi,

School of Law 11 September 2014

National Mediation Conference

2

Outline

La Trobe University

Context to research

Ethics in mediation

The research

Scenario discussion

Ethical issues and challenges for mediators

Context of research

Increased use of mandatory mediation in

civil justice system

Access to justice focus

Impact mediation values of neutrality and

self-determination may have in

perpetuating disadvantage

Ellen Waldman’s book Mediation Ethics

Australian National Mediator Standards

NMC 2014

Traditional Mediation Principles

Neutrality

Lack of bias; equidistance; equality; impartiality;

no input into content and outcome

Mediator a neutral third party

Self-Determination

Parties to determine content and outcome (also

process in transformative and narrative mediation)

Voluntariness

Undertake mediation of own free will

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Mediation Standards Under the National

Mediation Accreditation Scheme

Mediator not described as neutral third party BUT

Mediation primarily a facilitative process

Mediator manages process

Mediator not to provide advice; evaluate or determine

dispute

Mediation process to be non-directive as to content

but mediator may provide general (non-prescriptive)

information consistent with a mediation process

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Mediation Standards Under the NMAS

Neutrality/Impartiality

Self Determination

Procedural Fairness

Voluntariness

Confidentiality

Competence

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Mediation Standards Under the NMAS

Neutrality/Impartiality:

“A mediator must conduct the dispute resolution process in an impartial manner

and adhere to ethical standards of practice” (cl. 5, Practice Standards)

“Impartiality means freedom from favouritism or bias…” (cl. 5:1, Practice

Standards) – focus on conflicts of interest (disclosure)

“…mediator has no advisory or determinative role in regard to the content of the

matter being mediated or its outcome” (cl. 10, Practice Standards)

Mediator not described as neutral third parties (cl. 2:1, Practice

Standards; cl. 2:1, Approval Standards) BUT

Mediation primarily a facilitative process (cl. 2:3, Approval Standards);

Mediator manages processes (cl. 2:5, Practice Standards);

Mediator not to provide advice; evaluate or determine disputes (cl.

2:5, Practice Standards);

Mediation process to be non-directive as to content (cl. 2:5, Practice

Standards) but mediator may provide general (non-prescriptive)

information consistent with a mediation process

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Mediation Standards Under the NMAS

Self-Determination:

• ‘…participants … identify issues, develop options, consider

alternatives and make decisions about future actions and

outcomes’ (cl. 2:1, Practice Standards)

• ‘… Mediation is essentially a process that maximises the self

determination of the participants. The principle of self

determination requires that mediation processes be non-directive

as to content’ (cl. 2:6, Practice Standards)

• ‘… primary responsibility for the resolution of a dispute rests with

the participants’ (cl. 9:8, Practice Standards)

• Mediator not to ‘make a substantive decision on behalf of any

participant’ (cl. 9:8, Practice Standards)

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Mediation Standards Under the NMAS

Procedural Fairness

“A mediator will conduct the mediation process in a procedurally fair manner” (cl.

9, Practice Standards)

Elements of procedural fairness:

o free, voluntary decision making (cl. 9:1);

o lack of undue influence and informed consent (cl. 9:1);

o opportunity to speak and be heard (cl. 9:2);

o balanced negotiations (cl. 9:4);

o Mediator supports ‘participants in assessing feasibility and practicality of

proposed agreement … in accordance with participant’s own subjective

criteria of fairness’ (cl. 9:7);

o Mediator not to pressure participants into an agreement (cl. 9:7)

o Mediator to encourage participants to obtain independent professional

advice or information (cl. 9:6)

o Mediator to suspend or terminate process if a participant unable to

participate (cl. 9:3). See also cl. 11, Practice Standards

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Mediation Standards Under the NMAS

Competence includes Ethical Understandings of

• Conflicts of interests;

• Confidentiality;

• Neutrality and Impartiality;

• Fiduciary Obligations;

• Supporting fairness and equity in mediation

• Withdrawal from and termination of process (cl. 7:3(c),

Practice Standards; See also cl. 11, Practice Standards)

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Competing/Conflicting values

• Self-determination v. supporting fairness and equity in

mediation.

• Neutrality/Impartiality v. supporting fairness and equity in

mediation

• Neutrality/Impartiality v. recognising and addressing power

imbalances

• Neutrality/Impartiality v. ensuring informed decision-

making/consent

• Self-determination v. ensuring informed decision-

making/reality testing of options

• Self determination v. public interest

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Ethical dilemmas in mediation

• Ethical dilemmas arise in mediation

because of conflicting/competing

values

• Mediators often need to make a

choice between competing mediation

values and sometimes between

personal values and mediation

values

• To resolve ethical dilemmas,

mediators may be guided by

professional codes of conduct,

societal values, personal values

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Aims of research

Harness the wisdom of experienced mediation practitioners

on issues of justice using different scenarios which

mediators deal with in practice.

Publish a set of guidelines, to which practitioners could

have regard when confronted with issues relating to justice.

Generate discussion within the mediation sector and

among policy and law makers on how best to address

justice issues in mediation practice.

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Research:

Funded by Legal Services Board

Qualitative approach: semi-structured interviews

Advisory Panel – academic, barrister/mediator,

consumer advocate, VCAT member, Deputy

Commissioner

21 semi-structured interviews with experienced

mediation practitioners (1.5 – 2 hours)

• 3 practising academics ; 18 lawyer practitioners ; 3 non-lawyer

practitioners

5 scenarios focus of discussion

Consumer, discrimination, confidentiality, neighbour and

arranged marriage

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The Scenario

• Sexual harassment case brought under the Victorian Equal Opportunity Act 2010.

• VCAT - compulsory mediation.

• Applicant is Maree Wilson, a 23-year-old woman.

• The defendant is a large corporation.

Background

Maree at corporation three years. Her current boss is Steve, highly regarded and

considered a good manager. Friendly and helpful at first to Maree, but soon she started

to feel uncomfortable with him. He often stood close to her, put his hand on her shoulder

while looking at her computer screen, told her crude jokes and asked about her sex life.

Maree talked to the HR manager about it, but to toughen up and that if she wanted to

keep her job she had to handle it without making a fuss.

When an opportunity came up for an employee to go on a training course, Steve said he

would put her name forward, saying that ‘one good turn deserves another’ and ‘If you

look after me, I’ll look after you’. Maree’s co-workers told her that Steve has done this to

other women and there’s no point in complaining because nothing will happen. Maree

avoided Steve as much as possible but at a company drinks function Steve stood next

to her and put his arm around her, which made her feel extremely uncomfortable in front

of her colleagues. The final straw was when he tried to kiss her. NMC 2014

The Scenario (cont)

At mediation the company is represented by six people: the HR manager, Steve the boss,

two company directors, the in-house legal counsel, and a barrister.

Maree comes with a union solicitor. You know from other mediations that sexual

harassment is commonplace in this company and that management doesn’t take action.

You also know they will want to settle the claim confidentially to avoid publicity.

In her opening statement Maree says that one of the reasons she is taking action is that

she doesn’t want it to happen to anyone else. As the mediation progresses the union

solicitor appears out of his depth. The company barrister says that Maree is incompetent

at her job and Steve has to supervise her closely. When Maree starts to defend herself

her solicitor motions her to keep quiet, but he doesn’t say much in response to the

allegations. In private session with Maree and her lawyer, Maree tells you that she wants

the company to take sexual harassment seriously and that the union has promised to

publicise the case – it is very important to her that other young women not have to go

through what she has. She also says she is finding the mediation quite stressful, is feeling

bullied and is not sure how long she can continue.

Eventually the company makes an offer that Maree is considering accepting. The offer is

conditional on Maree signing a confidentiality agreement. The mediator knows from

experience that this offer is considerably less than Maree would be likely to get if she was

successful in her sexual harassment case at the tribunal. Based on what has been said

by the parties, Maree seems to have a strong case. Maree’s lawyer doesn’t seem to have

a good grasp of the relevant case law and other awards in similar cases.

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What issues are raised in this scenario?

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Main ethical issues identified by interviewees

Power imbalance – including different resources,

uneven numbers, boss v worker;

Capacity of legal representation/unequal legal

representation;

Informed decision-making, including Maree feeling

bullied;

Outcome at odds with party’s stated aims

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Power imbalance

Unequal number of support persons

Victim/perpetrator

Boss/subordinate

Experienced v. inexperienced

Young woman v. large corporation

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Capacity of legal representative

• Legal representation may be taken as guarantee for

informed decision-making but

• How does a mediator respond to lack of

competence?

• How does a mediator respond when legal

representative prevents party from participating in

process?

Differences in approach

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Informed decision-making Mediator to ensure parties make informed decision

but differences in approach:

• Outcome up to Maree; would respect decision

• Explore effect of feeling of being bullied and stressed on

informed decision-making;

• Concern about lawyer’s lack of competence and impact on

informed decision-making

I can use my skills to reality test in a way that creates enough opportunities in

her mind for her to question whether or not she’s got enough information to

make an informed decision.

Under the National Mediation Standards I can’t give advice, and the mediator’s

hand must not be seen in any agreement, but I do think it’s absolutely my

responsibility to ensure that people have had an opportunity to be informed.

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Fairness

Most interviewees did not consider ensuring substantive

fairness their role

Better to ensure outcomes reflect expressed needs and

interests

Benefits of settling other than financial

I don’t think it’s our role to get involved in the adequacy of the settlement .I

think you’ve got to be fair in the process, but I don’t think it’s our role,

unless it’s something that’s unconscionable and you think, well I might

terminate the mediation …

I don’t think you can just let someone do a very bad deal … So if … she’s

being offered a bad deal I think you would really try and not have her

agree .

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Other issues raised

• 3 interviewees questioned the mandatory nature of mediation

• 7 interviewees said should have been better intake process

• deal with who attends and

• ensure parties come prepared and informed

• All interviewees saw reality testing critical role of mediator

• One interviewee queried if this matter appropriate for mediation given

public interest element

• One interviewee would withdraw from mediation rather than preside

over confidential information because of public interest nature of issue

• One interviewee did not consider public interest an issue for mediators

to address unless there is a concern about public safety. Even then, it

becomes a question of degree.

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Quotes

My role is not to create justice. That’s not my role, but it might be that after

doing reality testing – and I’ll do it in a very neutral way – I will say, look it’s

important that you think about beyond today and think how that might play out

in the future if we have this or that today: What might be the implications down

the track? And it might create enough doubt that they decide they need to find

information, in which case it’s my belief that they ought to be able to do so. But

it wouldn’t be about me telling them, because they might have imperatives that I

know nothing about. There’s one thing you know as a mediator, you don’t know

everything.

… a big company can continue to get away with sexual harassment

claims and to bury their culture and be in denial – I’m afraid I couldn’t go ahead.

For me, I couldn’t go ahead, it’s too big. It’s such an important matter, especially

where we know now that people who are bullied and sexually harassed, it’s

potentially a danger to people’s health, so people are suiciding perhaps or

becoming very unwell. So I would have to consider those issues, that she’s

already stressed and distressed and feeling bullied and how long can she

continue, so others will be the same. So in that public interest versus integrity of

process, I’d go for the public interest.

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Common responses - summary

Most interviewees of the opinion mediator should not be

concerned with adequacy of settlement;

Party may consider non-financial benefits more

important;

Mediator should not make assumptions about parties and

likely outcome if matter were to be decided by a court or

tribunal;

Mediator to ensure agreement is reflective of expressed

needs and interests;

Mediator to ensure party is not unduly influenced or

pressured to accept settlement terms;

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Common responses - summary

Mediator to give parties opportunities to speak and be

heard;

Mediator to ensure parties make informed decision;

Participants identified lawyer’s incompetence but had

different responses;

Mediator to reality test options with both parties to ensure

informed decision making;

Public interest considerations arise in sexual harassment

cases

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How to address ethical challenges

Ethical issues are best dealt with by pre-empting them and

to pre-empt them I guess you need really good intake and

I’d also say you need experience. And ethical issues also

are best dealt with by knowing that you are not

indispensable and that there’s 101 ways to resolve disputes

and mediation is just one of them

I don’t believe anyone comes in as a blank slate, I think we

all tend to bring our own values in. And I think the

important thing is to be aware of them.

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Tips on how to address ethical challenges

Importance of good intake

Self awareness- recognise that mediators bring their

personal values into the process

Reality testing is critical to achieving justice

Experience, personal values and professional background

influence nature, extent and content of reality testing

Importance of informed decision-making

Be open to other views/alternatives

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Conclusions

Regardless of codes, ethical dilemmas arise for mediators

Mediators are generally concerned about justice but do not

think it is their role to ensure outcomes are just

Reality testing may cross the line of neutrality/self-

determination

Personal values and assumptions influence the nature,

extent and content of reality testing

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Conclusions

Private sessions provide opportunity for mediators to reality

test

Model of mediation practised influence identification of

ethical dilemmas and how dilemmas are addressed if

identified

Personal and professional values influence decision-

making on ethical issues

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Thank you

Contact details :

Prof Mary Anne Noone

m.noone@latrobe.edu.au

Dr Lola Akin Ojelabi

o.akinojelabi@latrobe.edu.au