In part 3 of this blog series, Hilary Linton focuses on the special ethical duty of family mediators with vulnerable clients
What is the formal source of a special ethical duty towards such vulnerable mediation participants?
The first source of a special ethical duty devolves directly from the way we, as family mediators, promote our services in comparison to what lawyers do. It is based on the concept of “promise”. This concept looms large in the field of mediation. We claim to offer a better process that will cost parties less money than using adversarial lawyering. The proclaimed lure of mediation is in its fairness, effectiveness and cost-efficiency. Michael Coyle summarizes what is promised as: objectivity, constructive communication, expertise, efficiency and social transformation.[13] One of our guiding texts is called The Promise of Mediation [14]. Our claims have created certain shared expectations on the part of those offering and using the process. Those expectations are summarized by Carrie Menkel-Meadow: [15]
1. mediation allows genuine party consent to the both process and outcome;
2. the parties have a fair opportunity for choice throughout (self-determination);
3. mediation is premised on the principle of democratic participation;
4. this participation occurs in the context of a fair process overseen by an unbiased person;
5. it allows for the creation of particularized solutions to legal problems which do no more harm to the parties than if the dispute was not resolved; and
6. the orientation is towards joint problem solving as opposed to adversarialism.
These expectations are condensed into three ethical principles by Sarah Grebe: (1) nonmaleficence (the mediation process and the actions or omissions of the mediator should not cause harm to a party); (2) justice, meaning both parties should be treated fairly; and (3) respect for personal autonomy.[16]
The mediator therefore holds out a promise to deliver a process which possesses certain ethical, financial and procedural benefits, with the implicit promise of a result that the parties consider to be fair. It is a compelling draw for separating couples.
Codes of mediator conduct form a second source of special ethical status. For instance, the Family Mediation Canada Code of Professional Conduct (“FMC Code”) provides insight into the intended goal of family mediation, and how that goal is to be achieved. The identified goal is to help the parties reach a “fair and workable agreement that meets the participants’ mutual needs and interests, not a settlement at any cost”.[17] On the mediator’s duty of impartiality, the FMC Code reads:
“Impartiality means freedom from favoritism or bias either in word or action, or the appearance of such favoritism or bias. Notwithstanding the above, a mediator has a duty to assist participants to reflect upon and consider how their proposed arrangements realistically meet the needs and best interests of other affected persons, especially vulnerable persons.”[18]
Article 9 of the FMC Code addresses the mediator’s duty to ensure fair negotiations. Mediators must endeavor to ensure that participants reach agreement voluntarily and on the basis of informed consent. The mediator has a positive duty to ensure procedural fairness and also to “explore whether the participants are capable of engaging in the mediation process”. There is also a duty to ensure balanced negotiations and an absence of “manipulative or intimidating” negotiating tactics. “While mediators must be impartial towards the participants, impartiality does not imply neutrality on the issue of procedural fairness.”[19]
And while the FMC Code does not go so far as to require mediators to ensure substantive fairness (as do the authors of the Family Mediation Handbook) it does require them to ensure that each party has had full opportunity to understand the implications of any proposals, imposing a duty to “assist the participants to assess the feasibility and practicality of any proposed agreement in both the long and short term, in accordance with the participant’s own subjective criteria of fairness, taking cultural differences into account.” [20]
Article 10 requires the mediator to “actively encourage” parties to make decisions based on full information and advice, and to require “undertakings” from them to disclose their financial and related circumstances. Article 13.1 sets out the duty to terminate mediation where the process is likely to harm or prejudice a party, or where one or both parties is acting in bad faith.
The Ontario Association for Family Mediation also has a detailed Code of Ethics (“OAFM Code”). Although similar in principle, it has specific provisions for “Potential Problems in Mediation”. The OAFM Code includes a duty to advise parties of the possibility that one of them may conceal or dissipate assets during the mediation process (bad faith); that a status quo regarding custody may develop during the mediation that could prejudice a party (no harm to parties principle); and that the promise of confidentiality is not absolute insofar that information learned during mediation, though strictly provided on a “without-prejudice” basis, might “open up lines of enquiry” that might not otherwise have come to light in subsequent litigation (no harm principle).[21]
Both Codes illustrate the special ethical challenges in family mediation that could thwart realization of the goal of the process. They provide a clear sense of the “lay of the land” in terms of the sorts of behaviour we are not to engage in or countenance. But they use bland and neutral language that does not provide much practical guidance. How zealous should we be in protecting the ethical standards reflected in the codes? Which ones are most important? If we have to sacrifice one principle in order to achieve the goals of the process, which should it be?
For instance, by what means is a mediator to assist the parties to assess the impact of their proposals on affected third parties? How far should a mediator “push” clients to determine whether their consent is “informed”? What does it mean to tell a mediator to “actively encourage” parties to make decisions based on informed consent? What are the kinds and/or degrees of manipulative tactics that mediators must not condone? What is meant by “an undertaking” to provide financial disclosure? Is this intended to be a promise made by the participants to the mediator, and how far should the mediator go to enforce this undertaking? Why does the mediator have a duty to advise clients that the process may be abused by a rogue to dissipate assets, but apparently no duty to advise that a party’s failure to be honest and empathetic may preclude settlement, thereby making the situation worse than if they’d never come to mediation? The former reflects lawyers’ fears about mediation, but the latter is far more often the real cause of a “failed” mediation. And there is no guidance in the Codes as the appropriate course for mediators when a duty in relation to fairness appears to conflict with the duty to respect party autonomy, impartiality or confidentiality.[22] This tension between the principle of party self-determination and the use of mediator influence to avoid party exposure to harm, to prevent abuse of mediation, to ensure a fair process and to reach the (often unspoken) goal of a fair outcome, exists in almost all mediations.[23]
The third source of ethical rules for family mediators is found in their mediation agreements. Parties and mediators are bound by the ethical commitments they make to each other by contract. The “standard” agreement to mediate describes the mediator’s role, the rules of confidentiality that apply to the process, and what the parties commit to do or not do to each other during the mediation process. Rarely do such agreements detail the ethical expectations the parties and the mediator have of one another.[24] Yet such reciprocal obligations underlie the very process; why else would parties consent to mediation unless they expected to abide by reciprocal ethical obligations, such as not lying to each other or to the mediator, or responding to the honesty of the mediator with equivalent honesty?
Excerpt from: Linton, Hilary. “Practical Guidelines for Comprehensive Family Mediation.” (2003): 1-17.
13 Coyle, FN 2, p.632-636
14 Robert Bush & Joseph Folger, The Promise of Mediation (San Francisco: Jossey-Bass, 1994)
15 Carrie Menkel-Meadow, FN 1, p. 453.
16 Sarah Grebe, “Ethics and the Professional Family Mediator” (1992) 10 Med.Q.155
17 Family Mediation Canada Code of Professional Conduct, Article 3.1
18 ibid, Article 8.1 & 8.2
19 ibid, Article 9.2-9.4
20 ibid, Article 9.5 & 9.6
21 Code of Ethics, Ontario Association for Family Mediation, Article 7.
22 Coyle, FN 2, p. 645
23 Morris, FN2, notes that the concept of non-intervention is based on the Western preference for selfdetermination and autonomy; ethical tensions about when and how to intervene reflect this bias. Not all cultures are so committed to individual autonomy, resulting in less ethical tension for mediators operating in other cultural environments. Milton Bennett’s article “Towards Ethno-relativism: A Developmental Model of Intercultural Sensitivity”, in Education in Intercultural Experience, R. Michael Paige
ed.,(Yarmouth: Intercultural Press, 1993) examines stages of ethno-centricism (“assuming that the worldview of one’s own culture is central to all reality”) and ethno-relativism (“cultures can only be understood relative to one another and that particular behavior can only be understood within a particular cultural context”).
24 David Wilkins, “Do Clients Have Ethical Obligations to Lawyers? Some Lessons from the Diversity Wars” 11 Geo. J. Legal Ethics 855 (1998); see also Carrie Menkel-Meadow, “Toward a Theory of Reciprocal Responsibility Between Clients and Lawyers: A Comment on David Wilkins’ “Do Clients Have Ethical Obligations to Lawyers? Some Lessons From the Diversity Wars””, 11 Geo. J. Legal Ethics, 901.
