Hilary Linton wrote this in-depth article on ethical guidelines for family mediators. Keep visiting our blog for the next part of this series.
As more unrepresented parties going through separation and divorce seek out mediators rather than lawyers, it becomes apparent that those practicing this kind of mediation must exercise great care in defining, implementing and preserving the ethical framework of their service.
Often, people contact a comprehensive family mediator without having first retained a lawyer. They have only a general sense of what mediation is like; mostly, they want expediency and to avoid the financial and emotional expense of going to court. They are rarely fully aware of the issues they need to discuss; few of them have ever seen a separation agreement. They rarely appreciate the range and complexity of decisions they must make in order to comprehensively and competently arrange their post-separation affairs. A mediator who accepts such clients is assuming great responsibility. In reality, the mediator becomes, for both parties, their primary source of legal and practical information , their negotiation coach, their conduit to legal and other essential advice, and their trusted advisor in determining what the issues are or should be, and how they might deal with them.
This role is entirely different from that of a representative lawyer and, as many writers have pointed out, the codes of conduct that guide lawyers in their representation of clients are of limited assistance to such mediators.[1] It is similar to but not the same as that of a commercial mediator providing Rule 24 civil mediation services under the Ontario Mandatory Mediation Program; and it is also very different from the role played by a therapist or social worker mediating a parenting plan.
There is, for good reason, great debate in the field about whether there should be mandatory codes of conduct for mediators. Many variables among mediators’ philosophies, their qualifications, their backgrounds and their practice styles make standardized ethical codes for mediators less than useful.[2]
However, there is an understanding that the ethical obligations of family mediators are more onerous, particularly for comprehensive family mediation (meaning mediation of all disputes arising from the breakdown of a marriage or relationship, including comprehensive financial disclosure, settlement of asset and liability issues, child and spousal support, parenting plans, and miscellaneous issues including security for future obligations, life insurance, wills, pension splitting, property transfers, tax provisions and property valuations.)
For instance, codes of conduct for family mediators are more detailed and have specific guidelines for procedural fairness.[3] Much of the literature about power imbalances, abuse in mediation, and the impact of gender and cultural differences is in the context of family mediation.[4] And some authors and mediators go so far as to advocate a duty for family mediators to ensure substantive fairness in settlements. [5]
This paper canvasses the practical realities and challenges of comprehensive family mediation and proposes a set of practical rules to help family mediators practice ethically, meaning effectively and without causing harm to the parties.
Excerpt from: Linton, Hilary. “Practical Guidelines for Comprehensive Family Mediation.” (2003): 1-17.
Sources:
[1] See, for example, Carrie Menkel-Meadow’s article “Ethics in Alternative Dispute Resolution: New Issues, No Answers From the Adversary Conception of Lawyers’ Responsibilities”, (1997) South Texas Law Rev. 407. Underlying Menkel-Meadow’s argument is the claim that where ADR seeks to express different values with respect to both dispute resolution and justice, its standards of rules of ethics must be responsive to a different set of underlying values than those that inform traditional adversary ethics.
[2] Although codes of conduct provide a barometer of existing ethical philosophy and practice, their utility for mediators is limited by their prescriptive nature, as the facts underlying ethical dilemmas rarely fit within the four corners of such codes. Also, they ignore the role of the parties in resolving ethical dilemmas and fail to address the diversity in practice and goals among mediators. This issue is addressed in detail in Catherine Morris’ “The Trusted Mediator: Ethics and Interaction in Mediation”, in Julie Macfarlane, ed., Rethinking Disputes, The Mediation Alternative (Toronto: Emond Montgomery, 1997) 301. Michael Coyle also writes about the limitations of mediator codes of conduct in “Defending the Weak and Fighting Unfairness: Can Mediators Respond to the Challenge?”(1998) 36 Osgoode Hall L.J., 625. Coyle points out that such codes offer only limited guidance for the mediator in relation to fairness and deception, ethical issues that mediators must be sensitive to. And, he writes at p. 645, they offer “little or no guidance as to the appropriate course for mediators where a duty in relation to fairness appears to conflict with a duty to respect party autonomy, impartiality or confidentiality.”
[3] For example, Family Mediation Canada’s Code of Professional Conduct for Mediators is a detailed and practice-specific set of rules for mediator conduct that is considerably more interventionist in terms of procedural and outcome fairness than the Model Code of Conduct for mediators of the Ontario Bar Association, the latter intended to apply to civil non-family mediations.
[4] Government-funded voluntary family mediation programs, such as the one offered at the Family Court of the Ontario Superior Court of Justice, require participants to undergo extensive “screening” processes to ensure that the mediator is appropriately aware of factors that could have a adverse impact on the fairness of the process or outcome, such as abuse, cultural and linguistic differences, and other imbalances. Mediators operating in the environment of Ontario’s Mandatory Mediation Program for civil non-family cases are not required to similarly screen their clients.
[5] In the Family Mediation Handbook, 3rd Edition, by Landau, Wolfson, Landau, Bartoletti and Mesbur (Toronto: Butterworths, 2000), it is stated that “the mediator must….ensure that the agreement reached is fair and reasonable, particularly where children are involved.” (p. 203). However, nowhere in any family mediation code of conduct, nor in the Family Mediation Handbook , is the term “fair and reasonable”, defined, presenting the mediator with a great responsibility that is impossible to fulfil in a meaningful way. The closest the handbook comes to a definition is in repeating the “non-malaficence” principle that applies to all mediators: “The mediator is under a duty to suspend or terminate mediation whenever he or she believes that the process may be harmful or prejudicial to one or more of the participants.” p.210.
