What does it mean to think communally about mediation ethics? It’s tempting to conceive ethics as a set of abstract rules or principles formulated by experts and then imposed from above. However, another way to think of ethics is as the product of a dynamic, community oriented process. Experienced mediators who seek to adopt an ethical attitude to their practice will notice patterns in their approaches to various disputes. Reflection upon these patterns then supplies the foundation for formulating general guidelines that arise organically from the process. This approach to identifying principles of mediation practice treats these principles are subsidiary to the situational nature of ethical judgments.
The model of mediation ethics sketched above is community oriented, rather than individualistic. This is because it recognises that the source of meaningful ethical guidelines lies in the accretion of experience in different mediation contexts over time. Mediators, then, can learn not just from their own practice, but from the experiences of others who accept the same general ethical outlook. Mediation ethics depends on the sharing of principles and guidelines throughout the mediation community. This makes full use of the store of knowledge reflected in the diverse experiences of mediators.
The community oriented model of ethics outlined above points to the importance of recognising mediation as a profession with its own specialties. This applies not only at the general level of recognising the distinctiveness of mediation, but also at the level of recognising the particular challenges that arise in, say, family mediation and allowing a store of knowledge to arise about the ethical guidelines applicable to family mediators. It may be that beyond the overarching value of party self-determination, different forms of mediation will generate quite different guidelines for ethical practice.
I do not mean to suggest there is anything radical or groundbreaking about this model. Indeed, I think it describes what already happens on an organic basis. However, the organic nature of ethics is not always fully appreciated. This results in the adoption of abstract principles that can distort or mask the evolved character of the guidelines practitioners actually follow. A mature model of mediation ethics will not hide the complexities of mediation behind the veneer of impartiality. It will embrace those complexities and challenge itself to develop ethical guidelines that can cope with them.
I’ve written previously about the evolution of ethical and legal judgments in my chapter on ‘Pre-Reflective Law’ in Maksymilian Del Mar (ed), New Waves in Philosophy of Law (Palgrave Macmillan, 2011), as well as other publications. I’m interested in exploring further what this means for mediation theory and practice.
The Australian Dispute Resolution Research Network 