In this part 4 of this blog series, Hilary sets out four practical ethical “rules” which should be considered in mediation practice
Four suggestions
Given the unique vulnerability of family mediation clients, and taking what exists already in the form of codes of conduct for family mediators, the following is a set of practical ethical “rules” which should, in my view, be the minimum requirements for this kind of mediation practice:
1. You must know and explain, openly and honestly, who you are, and how you practice mediation. Morris calls this first step “know yourself”. By this she means understand your own ethical values, and the assumptions which underlie them.[25] This in turn will impact the kind of mediation you tend to practice; for example, what do you consider to be the goals of mediation and the indicia of success? How do you deal with issues of confidentiality, particularly where the process involves caucusing? Do you caucus? How hard and far do you “push” parties to be open, honest, vulnerable and empathetic with each other in the name of reaching the goals of mediation? Are you prepared to be substantively evaluative if that is what the parties want? How do you deal with perceived bullying, lying, deceit, manipulation (however you might define that complex concept) or mere reluctance to fully participate? How hard do you try to enable the parties to realize some type of transformation, as opposed to “merely” reaching settlement? Much of this self-analysis will turn on your personality type; your natural inclinations to introversion or extroversion, to thinking or to feeling, and to sensing or to working with concrete facts will have a real impact on your own comfort levels and practices.[26]
2. You must clarify, in writing, the reciprocal obligations and expectations between you and your clients, in terms of ethics, process and outcome. This includes explaining to your clients “who” you are and “how” you practice mediation as discussed above. This is the only way of fairly and honestly letting clients know what to expect of you and what you expect of them, in order to reach the goals that they and you share for the particular mediation. Most mediation agreements state that the parties agree to mediate in good faith, but the expression of reciprocal ethical obligations and expectations pretty much begins and ends there. What do you expect of your clients ethically? And what do they expect of you? Presumably you will covenant not to lie to or mislead each other [27]. Substantively, the mediator and parties should identify at the outset the desired goal of the process; such as mutual commitments for behaviour to prevent abuse, a property division agreement that both parties consider fair, processes for improved communication, a sense of being heard, closure, to learn from past mistakes, a parenting plan that puts the interests of the children first, an agreement to start or continue counselling, and so on. The agreement should address how much direction, evaluation, and legal information the parties want from you, as well as your expectations of the parties in terms of them seeking legal and other advice. Clarifying these expectations in writing not only reduces the possibility of misunderstanding and disappointment during the mediation process, it protects the parties from their own lack of knowledge about the process. It “warms them up” for what they need to do. And it makes it more likely that the sorts of conduct you are covenanting not to engage in will in fact be avoided, making for a more useful and positive experience for all. In doing so you will be protecting, in the most effective way possible, the “weaker” party from bullying and other negative behaviour that might otherwise cause them harm.[28]
3. It is impossible to provide comprehensive family mediation in a way that is fair to the parties unless you have practised family law. For example, it is unfair to the parties for a non-family lawyer mediator to mediate a marriage contract. This is because this kind of mediation necessarily and continually implicates the practice of law.[29] A comprehensive family mediator must understand the nature and complexity of the parties’ legal rights and obligations in order to know whether true informed consent exists; a non-family lawyer will be incapable of making that assessment, or of determining if a party understands the legal advice he or she has been given sufficiently to apply informed consent. Some of the issues that will be mediated are not only done so in the shadow of the law; child support law, for example, cannot be contracted out of. The law must be applied and the parties will rightly look to the mediator for understanding as to how the guidelines operate. Determining income pursuant to the guidelines, for the purpose of calculating child support, is complicated and technical, especially for self employed people. A mediator who does not have legal skill and training risks doing harm to the parties by mediating child support settlements. The mediator should be able to competently guide the parties through financial disclosure issues and “net family property” calculations, as almost all separating couples will want to work through the family law act provisions as a starting point for their discussion about division of property. Legal skill and training is required just to know what assets are valued and how; the parties are entitled to expect this kind of expertise and guidance from their mediator. It is not the job of the mediator to judge the settlement the parties make, nor to advise the parties of their rights and obligations if they prefer to divide property in a way that is entirely different from the Family Law Act. But the mediator must be able to help the parties work the issues through based on the law and assess whether the consent to accept a settlement is truly informed. If the mediator does not understand the law, he or she will not be able to make this assessment.
The mediator needs moral and substantive credibility in the eyes of the parties; otherwise a bully may take advantage of real or perceived superior legal knowledge, resulting in a settlement that lacks real consent. The fair process that is promised will not materialize; not will the anticipated fair result.
How, one might ask, can there be a “risk of harm” to parties when the mediator does not prepare a binding agreement? Most family mediators prepare only a nonbinding memorandum of agreement which enables the parties to seek legal advice on its proposed terms. (In fact, the FMC and OAFM Codes prohibit the preparation of binding documents.) This practice serves the interests of nonlawyer mediators as much, or more, than the interests of the parties; it gives the mediator comfort, from a liability and unauthorized practice of law standpoint, in mediating settlements notwithstanding the mediator’s lack of substantive expertise in the subject matter of the dispute. But it provides no comfort to parties who commit in principle to settlements which they later learn, from their lawyers, are profoundly unfair from a legal perspective. At this point, such settlements may unravel, and the mediator has done more harm than if the parties had not mediated at all. The promise of mediation will not have materialized and the hostility, resentment and aggravation of the conflict may be worse.
4. The mediator must never be lazy; ethically this translates into brutal honesty with the parties and with yourself, a passion for the process and empathy for the parties. The mediator must never tolerate conduct that takes away from the realization of the goal of the process. The mediator is ethically obligated to push the parties relentlessly to find out what is needed and why, and what lies behind a party’s resistance to do what is needed. It means aggressively and tirelessly compelling the parties to verbalize the interests behind their positions, and to make sure that each party understands the other. It means smoking out bad faith, bullying, lies, misinformation and intentional half-truths, by talking about it, by putting what you are seeing or intuiting “on the table” for discussion; it means challenging the parties’ assertions and assumptions without appearing partial; it means never losing sight of the goal of the parties and the fairness of the process by which you are trying to help them accomplish that. It means evaluating positions that the parties may take if evaluation is what is needed to maintain a fair process, and not tolerating disingenuous, self-serving conduct. It means directing the parties towards possible solutions when that is what is needed, and knowing when to bring in third parties to help break impasse or to obtain reliable information that both parties trust. It means providing straightforward opinions about assertions made by parties as to the legal merit of their argument if they are just plain wrong, but doing so in an impartial and non-judgmental way. And it means knowing when to leave the parties alone and completely stay out of the process.
These four principles may appear to be incompatible with traditional notions of “neutrality” and “self-determination”, but it is suggested that respecting and practicing them will go a long way towards ensuring that real and meaningful impartiality and self-determination are in fact occurring. The concept of “neutrality”, for example, implies objectivity and distance from the source of the conflict. It is derived from the law, as a result of the superficial similarity between the roles of judge and mediator.[30] But the mediator’s role is nothing like that of a judge. What parties to mediation want is not actual neutrality, but the appearance of impartiality, honesty, empathy and an ability to find a connection with each side’s story.
“Because neutrality implies objectivity and distance from the source of the conflict, it cannot countenance empathy or give the mediator room to acknowledge or experience grief, compassion, love, fear, anger or hope. Neutrality can paralyze emotional honesty, intimate communication, vulnerability and self-criticism. It can undermine shared responsibility, prevention, creative problem-solving and organizational learning. It can ignore the larger systems in which conflict occurs. It can fail to comprehend spirit, forgiveness, transformation or healing, which are essential in mediation. As a result, it can become a straitjacket and a check on our ability to unravel the sources of conflict.”[31]
Conclusion
Comprehensive family mediation is a high-risk area of practice. The decisions made in mediation and the way in which they are made will affect the parties and their children for the rest of their lives. The mediation process is occurring in the context of a very complex and difficult body of substantive law that is rapidly changing. The mediator must understand the currents of the law. Of equal importance is the emotional context in which the parties are trying to make critically important decisions; it is a vortex of love, hate, passion, fear, grief, anger, depression, confusion and anxiety.
Mediators promise to deliver a process that will help the parties move on from all of this. It promises free and genuine consent, true self-determination, true democratic participation, a fair process, an impartial, skilled and committed mediator, cooperative problem-solving and san end result that does not harm the parties or their children.
Practising their craft with these four principles in mind will help them keep their promise.
Excerpt from: Linton, Hilary. “Practical Guidelines for Comprehensive Family Mediation.” (2003): 1-17.
[25] Morris, FN 2, p. 340
[26] It is suggested that all family mediators should complete a Myers-Briggs personality typing process to help them answer these questions about themselves, and therefore direct themselves in their practices.
[27 ]This covenant will require thought; the agreement should define “lying”. Gerald Wetlaufer in “The Ethics of Lying in Negotiations”(1990)765 Iowa Law Review 1218, defines lying as “all means by which one might attempt to create in some audience a belief at variance with one’s own”, at p. 1223. Given that there is a distributive element to the mediation process, lying can be seen by parties to mediation as an effective strategy. It is therefore essential that mediation contracts be based on the premise that “full and truthful disclosure is the key to identifying and exploiting opportunities for integrative bargaining”, (p.1228) and that the parties and mediator all promise to each other to mediate in the spirit of candid and full honesty in order to fulfill the objectives of the process.
[28] For more on the issue of reciprocal solicitor-client obligations, see Wilkins and Menkel-Meadow FN 23.
[29] Menkel-Meadow , FN1, asserts that mediation invariably involves elements of the practice of law among many practices, because of the application of legal skill and judgement to fact situations. (p. 424) This is undeniably a part of a comprehensive mediator’s role. See also Carrie Menkel-Meadow, “Is Mediation the Practice of Law?” (1996) 14 Alternatives to High Cost Litig. 57. This journal is premised on the argument that comprehensive family mediation must, if it is to be done in a way that lives up to its promise, include “the practice of law”.
[30] Cloke, FN 4, p.13.
[31] Ibid, p. 14
