Mediating Ethically: The Limits of Codes of Conduct and the Potential of a Reflflective Practice Model

Osgoode Hall Law Journal

Volumn 40, Issue 1, 2002, Pages 49-87

  Macfarlane, Julie ^a  

^a UNIVERSITY OF WINDSOR   (Canada)

Author keywords

Mediators (Persons) Professional ethics

Indexed keywords

EID: 85207215045     PISSN: None     EISSN: 28175069     Source Type: Journal    
DOI: 10.60082/2817-5069.1450     Document Type: Article

References (101)

1. See e.g. R. Delgado et al., “Fairness and Formality: Minimizing the Risk of Prejudice in Alternative Dispute Resolution” [1985] Wis. L. Rev. 1359 at 1387-89; P.E. Bryan, “Killing Us Softly: Divorce Mediation and the Politics of Power” (1992) 40 Buff. L. Rev. 441; and L.G. Lerman, “Mediation of Wife Abuse Cases: The Adverse Impact of Informal Dispute Resolution on Women” (1984) 7 Harv. Women’s L.J. 57. See generally R.L. Abel, ed., The Politics of Informal Justice: The American Experience, vol. 1 (New York: Academic Press, 1982).
2. Michael Coyle has written that “the mediator is a moral agent involved in the process.” See M. Coyle, “Defending the Weak and Fighting Unfairness: Can Mediators Respond to the Challenge?” (1998) 36 Osgoode Hall L.J. 625 at 640.
3. For an example of a list of functional goals for mediators, see ibid. at 632-36.
4. Moreover, the constant repetition of these values in codes of conduct for mediators highlights the dangerous potential of codes to entrench an unquestioned culturally dominant perspective.
5. See e.g. “Code of Professional Conduct”, art. 13.4, online: Family Mediation Canada (date accessed: 21 May 2002).
6. See R.A.B. Bush & J.P. Folger, The Promise of Mediation (San Francisco: Jossey-Bass, 1994) for an example of the transformative approach. See C. Menkel-Meadow, “Toward Another View of Legal Negotiation: The Structure of Problem Solving” (1984) 31 U.C.L.A. L. Rev. 754 [hereinafter “Another View of Legal Negotiation”] for an example of the problem-solving approach. See R. Fisher, W. Ury & B. Patton, Getting to Yes: Negotiating Agreement Without Giving In, 2d ed. (New York: Penguin Books, 1991) for an example of the principled approach based on the work of the Harvard Negotiation Project. There is also a lively ongoing debate over the relative merits of facilitative and evaluative mediation. See e.g. J.J. Alfini, “Evaluative Versus Facilitative Mediation: A Discussion” (1997-98) 24 Fla. St. U.L. Rev. 919 and “Symposium” in [2000] 2 J. Disp. Resol. 245.
7. Several codes of conduct for mediators were reviewed for this article. See “Code of Conduct”, online: ADR Institute of Canada (date accessed: 21 May 2002) [hereinafter “SPIDR Code of Conduct”]; “Ethical Standards of Professional Responsibility”, online: Society of Professionals in Dispute Resolution (date accessed: 21 May 2002) [hereinafter “SPIDR Ethical Standards of Professional Responsibility”]; “Practice, Certification and Training Standards”, online: Family Mediation Canada (date accessed: 21 May 2002) [hereinafter “FMC Practice, Certification and Training Standards”]; “Canadian Bar Association-Ontario Model Code of Conduct”, online: Stitt Feld Handy Group (date accessed: 21 May 2002) [hereinafter “CBAO Model Code of Conduct”]; “Code of Conduct: Ontario Mandatory Mediation Program”, online: Ministry of Attorney General (date accessed: 21 May 2002); “Florida Rules for Certified and Court-Appointed Mediators”, online: Florida State Courts (date accessed: 21 May 2002) [hereinafter “Florida Rules for Certified and Court-Appointed Mediators”]; “Standards of Practice for Family and Divorce Mediation”, online: Association for Conflict Resolution (date accessed: 21 May 2002) [hereinafter “Standards of Practice for Family and Divorce Mediation”]; “Standards of Practice for California Mediators”, online: California Dispute Resolution Council (date accessed: 21 May 2002) [hereinafter “CDRC Standards of Practice for California Mediators”]; Minnesota General Rules of Practice, Final Draft 10/30/96, r. 114, s.v. “Code of Ethics” [hereinafter “Code of Ethics (Minnesota)”]; “Kansas Standards of Practice for Lawyer Mediators in Family Disputes”, online: Kansas Judicial Branch (date accessed: 21 May 2002); “Rules Adopted by the Supreme Court: Rules Relating to Mediation”, r. 903, online: Kansas Judicial Branch (date accessed: 21 May 2002); “Proposed Model Rule of Professional Conduct for the Lawyer as Third Party Neutral” (1999), online: CPR Institution for Dispute Resolution (date accessed: 21 May 2002); R.A.B. Bush, “The Dilemmas of Mediation Practice: A Study of Ethical Dilemmas and Policy Implications” [1994] 1 J. Disp. Resol. 1 at 50-55 [hereinafter “Dilemmas of Mediation Practice]; and “Standards of Professional Practice for Mediators, Illinois”, online: Mediate.com (date accessed: 8 July 2002).
8. See “SPIDR Code of Conduct”, supra note 7. See also “SPIDR Ethical Standards of Professional Responsibility”, supra note 7.
9. See “Standards of Practice for Family and Divorce Mediation”, supra note 7.
10. See “FMC Practice, Certification and Training Standards”, supra note 7.
11. See “CBAO Model Code of Conduct”, supra note 7. A slightly modified version of this Code is used for the Ontario Mandatory Mediation Program, established under Rule 24.1 of the Ontario Rules of Civil Procedure. See Courts of Justice Act, R.R.O. 1990, Reg. 194, as am. by O. Reg. 453/98, s. 1.
12. “Dilemmas of Mediation Practice”, supra note 7 at 4.
13. Codes have tended toward a litany of restraints rather than positive obligations for mediators. For a striking exception, see “Florida Rules for Certified and Court-Appointed Mediators”, supra note 7, r. 10.350 which states “a mediator shall be patient, dignified, and courteous during the mediation process.”
14. Although it is not clear how particular codes would be enforced, or what sanctions would apply, in the event of a complaint of a breach. Under the Ontario Mandatory Mediation Program, Local Mediation Committees (LMC) must compile a roster of mediators who, in turn, are required to abide by the Program’s Code of Conduct, an adaptation of the Canadian Bar Association-Ontario Model Code of Conduct. See “CBAO Model Code of Conduct”, supra note 7. The LMC may revoke membership of the roster or refuse to renew it, but it is not clear under what circumstances. The LMC must also investigate complaints brought under the program’s complaints procedure. For a forthright approach to the question of an effective complaints process, see P. Portlock, “Certification and Complaints” (1996) 8:4 Interaction 10.
15. See J.L. Schulz, “Mediator Liability in Canada: An Examination of Emerging American and Canadian Jurisprudence” (2000-01) 32 Ottawa L. Rev. 269.
16. By publicly committing to standards of ethical practice, dispute resolution professionals seek to avail themselves of the traditional bargain of self-regulation. For a discussion, see C.D. Schneider, “A Commentary on the Activity of Writing Codes of Ethics” in J. Lemmon, ed., Making Ethical Decisions (San Francisco: Jossey-Bass, 1985) 83 at 83-84.
17. For an excellent review and appraisal of codes of conduct, see C. Morris, “The Trusted Mediator: Ethics and Interaction in Mediation” in J. Macfarlane, ed., Rethinking Disputes: The Mediation Alternative (Toronto: Emond Montgomery, 1997) 301 [hereinafter “Trusted Mediator”]. Morris also offers a model for a personally constructed approach to mediation ethics which foreshadows many of the ideas in this article.
18. See C. Argyris & D.A. Schön, Theory in Practice: Increasing Professional Effectiveness (San Francisco: Jossey-Bass, 1974) [hereinafter Theory in Practice]; D.A. Schön, The Reflective Practitioner: How Professionals Think in Action (New York: Basic Books, 1983) [hereinafter Reflective Practitioner]; and D.A. Schön, Educating the Reflective Practitioner: Toward a New Design for Teaching and Learning in the Professions (San Francisco: Jossey-Bass, 1987) [hereinafter Educating the Reflective Practitioner], See also M.D. Lang & A. Taylor, The Making of a Mediator: Developing Artistry in Practice (San Francisco: Jossey-Bass, 2000).
19. See The Canadian Oxford Dictionary, s.v. “ethics” which is described as “the science of morals in human conduct.” See also ibid., s.v. “morals” which are defined as “the distinction between right and wrong.” The usefulness of this dichotomy in the context of mediation is further discussed in Part IV(A).
20. Typically these include the mediator’s impartiality, their freedom from conflicts of interest, and confidentiality in all but exceptional circumstances. A contemporary Western model of mediation assumes these to be central aspects of the mediator’s role and any departure from these norms is viewed as an egregious breach of responsibility.
21. In a survey, practising mediators were asked to identify an ethical dilemma that they had faced in their practice. See “Dilemmas of Mediation Practice”, supra note 7 at 43.
22. A similar point has been made about the relationship between conceptualization of the lawyering role and legal ethics. “Legal ethics is the applied philosophy of lawyering; it goes to the heart of what it means to be a lawyer.” See A.M. Dodek, “Canadian Legal Ethics: A Subject in Search of Scholarship” (2000) 50 U.T.L.J. 115 at 116.
23. See J. Macfarlane, “Why Do People Settle?” (2001) 46 McGill L.J. 663 at 668-69.
24. For a similar approach, see M.L. Rhodes, Ethical Dilemmas in Social Work Practice (Boston: Routledge & Kegan Paul, 1986).
25. See e.g. “Another View of Legal Negotiation”, supra note 6; C. Menkel-Meadow, “Lawyer Negotiations: Theories and Realities-What We Learn from Mediation” (1993) 56 Mod. L. Rev. 361 [hereinafter “Lawyer Negotiations”]; and S.H. Clarke, E.D. Ellen & K. McCormick, Court-Ordered Civil Case Mediation in North Carolina: An Evaluation of Its Effects (Chapel Hill, N.C.: Institute of Government, University of North Carolina at Chapel Hill, 1995).
26. See e.g. J.J. White, “Machiavelli and the Bar: Ethical Limitations on Lying in Negotiation” [1980] Am. B. Found. Res. J. 926. See generally C. Menkel-Meadow, “Ethics in Alternative Dispute Resolution: New Issues, No Answers From the Adversary Conception of Lawyer’s Responsibilities” (1997) 38 S. Tex. L. Rev. 407.
27. See e.g. D. Fernhoff, “The Valued Therapist” in M. Goldberg, ed., Against the Grain: New Approaches to Professional Ethics (Valley Forge, Pa.: Trinity Press International, 1993) 55.
28. L.M. Cooks & C.L. Hale, “The Construction of Ethics in Mediation” (1994-95) 12 Mediation Q. 55 at 72.
29. Ibid. at 61. However, despite the apparent consensus among codes over some of the goals of the process, there is little consistency in professional practice.
30. See S. Cobb, “Einsteinian Practice and Newtonian Discourse: An Ethical Crisis in Mediation” (1991) 7 Negotiation J. 87. This suggests that the distinction drawn in Coyle, supra note 2 at 636-67 between the procedural and substantive dimensions of fairness is a false dichotomy.
31. “NSPE Code of Ethics for Engineers”, ps. 11(b), III(2)(b), online: National Society of Professional Engineers (date accessed: 21 May 2002).
32. However, a dilemma that can be readily anticipated and easily identified, because a clear and uniform best practice has been set out, is no longer a true dilemma but rather a formalized professional response.
33. Compare “APA Ethical Principles of Psychologists and Code of Conduct”, Preamble, online: American Psychological Association (date accessed: 24 May 2002) [hereinafter “APA Ethical Principles of Psychologists and Code of Conduct”]. The Preamble concludes “[e]ach psychologist supplements, but does not violate, the Ethics Code’s values and rules on the basis of guidance drawn from personal values, culture, and experience.”
34. S.C. Grebe, K. Irvin & M. Lang, “A Model for Ethical Decision Making in Mediation” (1989-90) 7 Mediation Quarterly 133 at 142-43. For a case study that raises a particularly explicit personal moral issue, see Part VII.
35. Feminist theory uniquely emphasizes the significance of individual, experiential, and affective responses to the world. See e.g. J. Macfarlane, “A Feminist Perspective on Experience-Based Learning and Curriculum Change” (1994) 26 Ottawa L. Rev. 357 at 379-82.
36. W.B. Pearce & S.W. Littlejohn, Moral Conflict: When Social Worlds Collide (Thousand Oaks, Cal.: Sage Publications, 1997) at 65-67.
37. See generally Educating the Reflective Practitioner, supra note 18. See also the discussion in Part V at 24-25.
38. In my experience, a complex power dispersal is far more common than a clear power imbalance, although some negotiations do inevitably manifest this type of clear inequality. For an excellent analysis of the possible sources of power in negotiation, see B. Mayer, “The Dynamics of Power in Mediation and Negotiation” in C.W. Moore, ed., Practical Strategies for the Phases of Mediation (San Francisco: Jossey-Bass, 1987) 75; B. Mayer, The Dynamics of Conflict Resolution: A Practitioner’s Guide (San Francisco: Jossey-Bass, 2000) c. 3.
39. The cultural norms of the parties will be an important variable in comparing party behaviour to any given standard. Michelle LeBaron Duryea makes a similar point in relation to performance assessment standards for mediators, arguing that it is misleading to imagine that these could be complied in a culturally neutral manner. See M. LeBaron Duryea, “The Quest for Qualifications: A Quick Trip Without a Road Map” in C. Morris & A. Pirie, eds., Qualifications for Dispute Resolution: Perspectives on the Debate (Victoria: UVic Institute for Dispute Resolution, 1994) 109.
40. See e.g. “SPI DR Code of Conduct”, supra note 7, ss. 11, 111; “CBAO Model Code of Conduct”, supra note 7, ss. IV, V; “Standards of Practice for Family and Divorce Mediation”, supra note 7, s. IV; and “CDRC Standards of Practice for California Mediators”, supra note 7, s. 2.
41. See e.g. “SPIDR Code of Conduct”, supra note 7, s. V; “CBAO Model Code of Conduct”, supra note 7, ss. VI; and “Standards of Practice for Family and Divorce Mediation”, supra note 7, s. VI.
42. See e.g. “CBAO Model Code of Conduct”, supra note 7, s. VII(1); “Standards of Practice for Family and Divorce Mediation”, supra note 7, s. III.
43. Interestingly, a similar approach to specifying the conditions for set-up is found in “APA Ethical Principles of Psychologists and Code of Conduct”, supra note 35. Specifically, Rule 4.02 imposes the obligation to ensure that the patient begins therapy only after giving informed consent to treatment and Rule 5.01 (b) requires a discussion of confidentiality and its limitations to occur “at the outset of the relationship and thereafter as new circumstances may warrant.” Other than the need to possibly revisit the issue of confidentiality, there is little guidance about how to manage the ongoing patient relationship aside from Rule 4.05 which strictly prohibits sexual relationships with patients.
44. Examples include “Standards of Practice for Family and Divorce Mediation”, supra note 7, s. X(d) which requires the mediator to terminate the mediation if “a reasonable agreement is unlikely”; “SPIDR Ethical Standards of Professional Responsibility”, supra note 7, s. 6 which requires the mediator to ensure that agreements “will not impugn the integrity of the process”; and “Florida Rules for Certified and Court-Appointed Mediators”, supra note 7, r. 10.042(b)(3) which terminates “the mediation if the mediator believes the case is unsuitable for mediation or any party is unable or unwilling to participate meaningfully in the process.” See also “SPIDR Ethical Standards of Professional Responsibility”, supra note 7, s. v. “unrepresented interests”; “Standards of Practice for Family and Divorce Mediation”, supra note 7, s. VII(b) which ensure that any third parties’ interests which may be affected by a settlement are taken into account in a final agreement.
45. “CBAO Model Code of Conduct”, supra note 7, s. III (1).
46. Of the codes reviewed for this article, only the “Florida Rules for Certified and Court-Appointed Mediators”, supra note 7, r. 10.310, refer to the mediator’s need to protect party self-determination.
47. This, at least, is true in the minds of process specialists, namely adjudicators, lawyers, and other advocates. But this assumption is contradicted by a credible body of research on so-called procedural justice which consistently demonstrates that fairness of process is equally or possibly more important to disputants than the final outcome when they come to appraise their dispute resolution experience. See e.g. J. Thibaut et a!., “Procedural Justice as Fairness” (1973-74) 26 Stan. L. Rev. 1271; J. Thibaut & L. Walker, Procedural Justice: A Psychological Analysis (New York: Erlbaum, 1975); T.R. Tyler, “Conditions Leading to Value-Expressive Effects in Judgments of Procedural Justice: A Test of Four Models” (1987) 52 J. Personality & Soc. Psychol. 333; and E.A. Lind & T.R. Tyler, The Social Psychology of Procedural Justice (New York: Plenum Press, 1988).
48. Cooks & Hale, supra note 28 at 58.
49. K. Gibson, “The Ethical Basis of Mediation: Why Mediators Need Philosophers” (1989-90) 7 Mediation Q. 41. For a case study of an ethical dilemma in which two conflicting principles were involved, see Grebe, Irvin & Lang, supra note 36 at 140-46. For an interesting discussion of the tension created between mediator techniques to persuade the parties to move their negotiations along, and party voluntariness and autonomy, see D.E. Matz, “Mediator Pressure and Party Autonomy: Are They Consistent with Each Other?” (1994) 10 Negotiation J. 359. See also Coyle, supra note 2 at 645 for a discussion of the potential for conflict between the duty to ensure fairness and respect for party autonomy, and confidentiality.
50. Compare the “Canadian Code of Ethics for Psychologists”, 3d ed., s.v. “When Principles Conflict”, online: Canadian Psychological Association (date accessed: 27 May 2002) which addresses the problem of conflicting principles by anticipating that ethical principles, in some circumstances, will conflict and therefore each principle can not possibly be given equal weight. To deal with this problem, a general order is suggested for its four key principles.
51. “Dilemmas of Mediation Practice”, supra note 7 at 41.
52. See J. Rifkin, J. Millen & S. Cobb, “Toward a New Discourse for Mediation: A Critique of Neutrality” (1991-92) 9 Mediation Q. 151.
53. See the extensive discussion in “Trusted Mediator”, supra note 17 at 318-32.
54. Rifkin, Millen & Cobb, supra note 54 at 154.
55. Pearce & Littlejohn, supra note 38 at 15.
56. See ibid. at 15ff for a discussion of the application of the concept of incommensurate ends to conflict analysis.
57. “Dilemmas of Mediation Practice”, supra note 7 at 44.
58. See e.g. M.J. Bailey, “Unpacking the ‘Rational Alternative’: A Critical Review of Family Mediation Movement Claims”(1989) 8 Can. J. Fam. L. 61.
59. See e.g. K.E. Menzel, “Judging the Fairness of Mediation: A Critical Framework” (1991-92) 9 Mediation Q. 3; J. Rifkin, “Mediation from a Feminist Perspective: Promise and Problems” (1984) 2 L. & Ineq. 21.
60. See E. Kruk, “Power Imbalance and Spouse Abuse in Divorce Disputes: Deconstructing Mediation Practice via the ‘Simulated Client’ Technique” (1998) 12 Int’l J. L. Pol’y & Fam. 1.
61. See e.g. A. Townley, “The Invisible -ism: Heterosexism and the Implications for Mediation” (1991-92) 9 Mediation Q. 397; T. Grillo, “The Mediation Alternative: Process Dangers for Women” (1990-91) 100 Yale L.J. 1545 at 1590-93. See also Transition House Association of Nova Scotia, Abused Women in Family Mediation: A Nova Scotia Snapshot (Halifax: The Association, 1996).
62. Recent research on the impact of ethical codes on maintaining standards of professional behaviour among lawyers has suggested a similar problem. There is a further suggestion that the existence of ethical codes serve to limit or inhibit individual reflection and reasoning about moral problems. See M.A. Wilkinson, C. Walker & P. Mercer, “Do Codes of Ethics Actually Shape Legal Practice?” (2000) 45 McGill L.J. 645.
63. K.T. Bartlett, “Feminist Legal Methods” (1989-90) 103 Harv. L. Rev. 829 at 880-87.
64. Cooks & Hale, supra note 28.
65. See Theory in Practice, supra note 18; Reflective Practitioner, supra note 18; and Educating the Reflective Practitioner, supra note 18.
66. See also J. Macfarlane, “Look Before You Leap: Knowledge and Learning in Legal Skills Education” (1992) 19 J. L. & Soc’y 291 [hereinafter “Look Before You Leap”] for a discussion about the implications of an epistemology of learning; J. Macfarlane, “Assessing the ‘Reflective Practitioner’: Pedagogic Principles and Certification Needs” (1998) 5 Int’l J. L. Profession 63 for a discussion about the models of assessment in professional education.
67. See e.g. M.T.H. Chi, R. Glaser & M.J. Farr, The Nature of Expertise (Hillsdale, N.J.: Erlbaum, 1988).
68. Theory in Practice, supra note 18 at xxiv.
69. Similar assumptions about the actor’s role in conflict and conflict resolution are reflected in the work of John Paul Lederach. See e.g. J.P. Lederach, Preparing for Peace: Conflict Transformation Across Cultures (New York: Syracuse University Press, 1995).
70. For a more detailed discussion of this dimension of Schön’s work, see “Look Before You Leap”, supra note 68.
71. Educating the Reflective Practitioner, supra note 18 at 217-18.
72. Described by Argyris & Schön as “double loop” learning. This resonates with W.B. Pearce’s concept of “coordinated meaning.” See e.g. W.B. Pearce, “The Coordinated Management of Meaning: A Rules-Based Theory of Interpersonal Communication” in G.R. Miller, ed., Explorations in Interpersonal Communication (Beverly Hills: Sage Publications, 1976) 17.
73. Theory in Practice, supra note 18 at 6-18.
74. This is the opposite to the defensiveness that characterizes professional decision making where there is little emphasis on reflection, which Schön describes as “Model I” learning. See Educating the Reflective Practitioner, supra note 18 at 257.
75. K. Kressel, “Practice-Relevant Research in Mediation: Toward a Reflective Research Paradigm” (1997) 13 Negotiation J. 143 at 144.
76. In each case, the parties’ names and some other facts have been changed in order to safeguard anonymity. I have included references in each case study to code of conduct principles that appeared, at first glance, to be relevant to the dilemmas that arose, in an attempt to connect the universal prescriptions of the codes to the exigencies of these particular situations.
77. The issues identified by the parties were rent arrears, complaints from other tenants, Joe and Anthony’s long-standing personal relationship, and Anthony’s expressed interest in purchasing the building.
78. See Tenant Protection Act, S.O. 1997, c. 24, ss. 61(1), 69(1).
79. See e.g. “CBAO Model Code of Conduct”, supra note 7, s. 111(4) which states that mediators have a responsibility to advise unrepresented parties to obtain legal advice, or to consult other professionals in order to make informed decisions; “Standards of Practice for Family and Divorce Mediation”, supra note 7, s. VIII(a) which states that “[t]he mediator shall encourage and assist the participants to obtain independent expert information and advice when such information is needed to reach an informed agreement….” An interesting parallel definition of “informed consent” can be found in “APA Ethical Principles of Psychologists and Code of Conduct”, supra note 35, p. 4.02(a) which states that “informed consent generally implies that the person (1) has the capacity to consent, (2) has been informed of significant information concerning the procedure, (3) has freely and without undue influence expressed consent, and (4) consent has been appropriately documented.” However, unlike most mediators, psychologists have relevant professional training in order to make an assessment of clinical capacity to consent. Furthermore, the type of additional external information significant to consent likely differs for individuals involved in legal disputes than for patients undergoing psychological examinations.
80. “SPIDR Code of Conduct”, supra note 7, s. I, s.v. “Comments”; “Dilemmas of Mediation Practice”, supra note 7, s. IV(d) at 52-53.
81. “Florida Rules for Certified and Court-Appointed Mediators”, supra note 7, r. 10.370(c).
82. “Standards of Professional Practice for Mediators, Illinois”, supra note 7, s. VI.
83. “Standards of Practice for Family and Divorce Mediation”, supra note 7, s. VI11 (a). But it may be difficult to draw this line. In Anthony’s case, Joe’s settlement offer had no legal disadvantages. However, a judge would almost certainly have ordered eviction in the case of default, which would be regarded as the final straw.
84. See Tenant Protection Act, supra note 80, s. 118(6).
85. Criminal Code, R.S.C. 1985, c. C-46, s. 347 which prohibits interest on loans above 60 percent per annum and makes charging more than 60 per cent interest, or assisting in drawing up a contract to charge more than 60 per cent interest, an indictable offence. Both the person charging the rate of interest and any individuals assisting in making such an agreement are liable.
86. See “Code of Ethics (Minnesota)”, supra note 7, s. V(5) which stipulates that under these circumstances the mediator must withdraw. The same language is found in the “Comments” in “SPIDR Code of Conduct”, supra note 7, s. VI.
87. This may be also be relevant to ascertain the mediator’s criminal liability, such as to asses whether they are susceptible to a charge of criminal conspiracy under the Criminal Code.
88. Below is an example of my own standard terms of mediation.
89. The mediator shall not disclose to anyone who is not a party to the mediation anything said or any materials submitted to the mediators, except:
90. to the lawyers or other professionals retained on behalf of the parties or to non-parties consented, as deemed appropriate or necessary by the mediator;
91. for research or education purposes, on an anonymous basis;
92. where ordered to do so by a judicial authority or where required to do so by law;
93. where the information suggests an actual or potential threat to human life or safety
94. “SPIDR Code of Conduct”, supra note 7, s. V.
95. See e.g. “SPIDR Ethical Standards of Professional Responsibility”, supra note 7, s. 3, which states “[a] commitment by the neutral to hold information in confidence within the process also must be honored.”
96. See e.g. “Florida Rules for Certified and Court-Appointed Mediators”, supra note 7, r. 10.600 which speak of the mediator’s responsibility to “preserve the quality of the profession.”
97. The same assumption runs through victim offender programs. See e.g. M.S. Umbreit, “Mediation of Victim Offender Conflict” [1988] J. Disp. Resol. 85.
98. Although even where the outcome is perfectly lawful, as it was in this case, there is the additional question of whether a court would enforce such an agreement as contrary to public policy. This did not seem to be a practical concern for either Don or Clive.
99. This is a far more common ethical problem and one which codes of conduct deal with only tangentially. See e.g. “CDRC Standards of Practice for California Mediators”, supra note 7, s. 3 which states that a mediator should discontinue if he believes that “the integrity of the process has been compromised”; “CBAO Model Code of Conduct”, supra note 7, s. XI(3)(b) which stipulates that a mediator should terminate the mediation if “one or more of the parties is using the process inappropriately.”
100. An interesting further question is whether this means that my theory-in-use in this case is consistent with or different from my theory-in-use for Anthony’s case.
101. Leda Cooks and Claudia Hale have argued that if mediators take over responsibility for defining fairness and balance of procedure in mediation through the development of codes of conduct, the disputants themselves are deprived of the right to frame the process in their own moral terms. See Cooks & Hale, supra note 28. Client perceptions of fairness—particularly their feelings about voluntariness, pressure and mediator judgement making—are critically significant for a field that places such emphasis on client empowerment and self-made solutions.