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First Considerations -- Opening Ethics Lecture

Introduction

Without any delay or preparation, let me propose a hypothetical.

You open a door into a room and find yourself facing three people who recognize you as a mediator and ask you to mediate their conflict.  The two armed men are rapists and the unarmed woman is their victim.  They wish to mediate the issues involved in their rape.

What do you do?

Do not answer out loud.

Let me ask some more questions.

Would it matter if the woman asked for you to mediate?

Would it matter if your mediating the matter would result in the arrest and conviction of the men and your refusing to mediate the matter would result in the death of the woman?

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Expanding the Scope

The issues that a mediator faces in being asked to mediate a rape cover the core of the current conflict over what is and is not required of mediators in a wide variety of situations.

A rape consists of:

Consider the case of a mediator called in to mediate the negotiations between a terrorist and the mayor or a bank robber, his hostages and the police.

In that case you have force applied in an illegal fashion for an illegal goal.

The State does not lack for power (though the hostages do).

Or consider the case of a mediator called in to mediate between a poor person and the state exercising its right of eminent domain to demolish a home (that cannot be replaced in the current market) and build a road or a parking lot.

In such a case you have a terrible imbalance of power and often the "real" reason for the presence of the mediator is to make the use of power more effective and less costly than it would otherwise be.

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The Three Alternative Positions

There are three widely espoused positions applied to mediation.

  1. Strict Neutrality.
  2. Judicial Officer.
  3. Chancellor.


A strict neutral refuses to take sides, other than the seeking of a mediated settlement.  All a neutral does is aid the parties in seeking their own best interest.  Many times a party will be willing to engage in mediation, if and only if, they are convinced of the neutrality of the mediator.  (Ask yourself if you would invite someone into a conflict whose sole purpose was to harm your position).  For reference, a "neutral mediator" favors settlement.

A judicial officer takes the side justice defined as the side of the rule of law (which generally reflects the social contract).  Many times a party seeks a mediator who will bring to bear the power of the State in influencing the parties to move in accord with the rule of law, only more quickly.  For reference, a "judging mediator" favors justice.

Finally, the chancellor mode of mediator seeks "equity" or "fairness" as defined by the mediator.  On a national level, some of those who operate in a chancellor mode (the name comes from the Chancery Courts of Equity) feel that they should not disclose their bias or definition of fairness in order to impose the same more effectively.  Many times parties will agree to mediation only if a mediator is seen as a Chancellor who will further what is right.  For reference, a "chancery mediator" favors social equity.

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Who is Right?

First, consider if any method of mediation is wrong if the parties know what they are getting and request the form and type of mediator they end up with.

But ...

What if an abusive and controlling party brings his or her spouse into divorce mediation in order to keep the spouse from obtaining the legal counsel that would level the playing field?  Does the mediator go along with the overreaching -- facilitating the extended abuse?

What if terrorists wish to exchange hostages so that their suicides will be more impressive?

What if ....

When and how does a mediator chose between ethical behavior and the violation of the social covenant?  What defines the right ethical stance?

What if ....

These are all powerful sub-sets of the question of mediator ethics.  To approach answers, more questions must be asked, working from basic principles.

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Basic Principles

This essay began with a provocative situation and moved quickly into situations that are, to one degree or another, analogous to the initial hypothetical.

In all of these situations, the following issues come into play:


The next essay (Ethics and the Role of a Mediator) approaches ethical issues in settings that are more "normal."  You will see those issues much more often than you are likely to be asked to mediate a hostage situation or a rape.  But without the view of the larger picture, it is sometimes hard to understand the passion and force brought to the discussion by many mediators (especially those without the background of being trained in the law).

Further, the concept of "chancery mediation," while alien to the attorney-mediator model (and in violation of most mediator ethics codes) is one that is strongly embraced and propounded (e.g. NIDR's national conference in 1997 devoted substantial focus on the duty to act as a chancery mediator and to accept violence, violation of social contracts, fabian activity and alternative processes).  A theoretical foundation for understanding where chancery mediation fits into the general process is useful for cross-disciplinary discussions of the issues.

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Conclusions

Mediators are just beginning to consider the ethical implications of mediation -- especially in situations where one side is using mediation to reduce the cost or effort involved in obtaining a benefit from the weak and the powerless.  The question of whether mediation should be a tool of social justice or a part of the existing social contract (and if so, how it should be applied) is just the beginning of the deeper ethical issues that await to be explored.

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Copyright 2000 Stephen R. Marsh

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