Ethics in Mediation

It’s Law in Context Week for first year law students at the University of British-Columbia. The objective of this course is to provide an introduction to legal ethics and professionalism. Though many parallels exists between the ethical requirements of a lawyer and mediator, I wanted to explore the field of ethics specifically in the context of mediation.

Instances of clear cut ethical dilemmas tend to be scarce and even then, don’t require much thought or contemplation as to which path is right and which is obviously wrong. There are few lawyers that would not classify stealing from clients, or hiding evidence as unethical conduct. In mediation and other fields of law, issues are more intricate and subtle, making ethical decisions a tough choice between right or wrong that aren’t as clearly defined. Certain ethical concerns often arise in the course of mediation, for instance, at what point is the ability of an individual to mediate comprised by a conflicting interest, or what degree of consideration should be afforded a third party affected by the outcome of mediation.

Professor Ellen Waldman discusses the ethical obstacles facing mediators as they pursue successful mediation in her book, Mediation Ethics: Cases and Commentary. Professor Waldman submits that there are underlying principles likely to be in tension when mediators confront cases challenging their individual ethics. These principles include an attempt to ensure procedural fairness used to reach the result, the right of the disputant to make choices based on personal beliefs free of coercion or constraint, and the substantive fairness of the mediated outcome.  

Mediation, unlike litigation assumes that parties should retain control over how their conflicts are presented, discussed, and resolved. Unfortunately, situations can arise where it is questionable whether one party can be said to actually be exercising their autonomy. Professor Waldman cites both internal threats, such as blinding rage that subvert the decision making ability of the individual and situational threats that can coerce behaviour. If one party due to their frailties is manipulated by the other side, can it be said that their behaviour is autonomous and at what point should a mediator be compelled to intervene?

Furthermore, at what point does the fairness of the result matter? Some practitioners and scholars submit that questions of fairness remain only a consideration in evaluating the procedural, rather the substantive result. Mediators tend to be uncomfortable with the role of justice arbiter, but what happens where a weaker party due to their frailty is willing to accept substantially less than what they could receive otherwise in court? Is there not a point at which the autonomy and procedural fairness underlying mediation gives rise to the substantial fairness of the parties?

These are difficult questions that lack a definite and widely accepted answer. The context of each mediation is an inherently important factor to consider before arriving at a final decision. Reflective practitioners describe conflicts in ethical norms and propose solutions that are different in different contexts. For practitioners, it remains vitally important to take account of the context and engage in a thoughtful consideration of neutrality, impartiality, conflict of interest, as well as many other ethical concerns when conducting mediations. 


 As always if you feel that you have an issue that could benefit from mediation contact the CORE clinic at UBC either by email at coreclinic@hotmail.com or give us a call at 604-827-5024. Have a great week!