BSCOM 450 UP Negotiation Mediation and Diplomacy Discussion

BSCOM/450: Negotiation, Mediation, And
Diplomacy
Week 5 Discussion – Mediation Ethics
Materials
Textbook
Kim, R. (2023). Negotiation, mediation, and diplomacy. MyEducator.
Course Tools
MyEducator
This week expands beyond mediation fundamentals and principles to more advanced
topics, such as the role and management of bias in the mediation process, as well as ethical
considerations in mediation. It is important to recall that the principles and fundamentals
of mediation carry with them far greater ethical responsibilities compared to the
negotiation process. In the negotiation process, you are not required to practice neutrality
because you are resolving your own dispute.
Respond to the following in a minimum of 175 words:
•
•
•
Share how you would navigate a mediation process in which your personal sense of
ethics is put at odds with your ethical responsibilities as a mediator.
Brainstorm situations that could make the two incompatible.
Provide examples and support for your response.
Consider some of these factors as you expand your response:
•
•
•
Sources of bias
Forms of bias that could impact a mediation and the strategies available to remedy
or avoid them
Consider how you would ensure you prioritize the principle of “Do No Harm”
Chapter 13: Overcoming Bias in Mediation
13.1Introduction
Topic 13 Introduction Transcript
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LEARNING OBJECTIVES
1. Identify the role of ethics in mediation.
2. Develop upon the principle of “Do No Harm.”
3. Explore further professional role boundaries in mediation.
Having now developed our understanding of the role that bias can play in mediation and the strategies we can employ
as mediators to ensure no forms of bias negatively impact our ability to facilitate the mediation process, it is time for us
to turn to our final topic of this course and closely examine the role that ethics plays in the mediation. We will ask
ourselves what ethical considerations we must make when we mediate on others’ behalf and how ethics relates to
questions of bias and our fundamental duties as mediators. While we may feel more comfortable relegating the question
of ethics to our gut feelings and moral compass, it is important to be able to clarify for ourselves what exactly ethics is in
order to have a framework for approaching ethical considerations in mediation.
13.2(Re)Introduction to Ethics
What Is Ethics?
We defined ethics for ourselves back in Week 3 during our discussion of Advanced Topics in Negotiation. However,
seeing as it has been some time since then, it will help us to refresh our memories with a definition of what ethics is. This
way, we will be better prepared to apply the concept to the practice of mediation.
As a discipline, ethics is a collection of theories regarding moral principles and values. It concerns attempts by thinkers
and scholars to organize and systematize the notion of right and wrong. 1 As such, the quality of being ethical is adhering
to some form of moral system, whereas the quality of being unethical means deviating from such a system, or rejecting
such systems altogether.
While different people and cultures may disagree on more minor points in their overall systems of value, the vast majority
agree on some major values and principles. For instance, it is pretty much universally accepted around the world that
being deceptive is unethical—this applies to the matter of mediation as well. So far, in familiarizing ourselves with the
theory and practice of mediation, we have identified different types of mediation, different mediation strategies, various
mediation contexts, and other frameworks which help us meditate more successfully. However, each of these subtopics
drew from the first things we learned about mediation, which are its principles. They are included below if you need a
refresher from last week:
1. Separate the people from the problem.
2. Focus on interests not positions.
3. Invent options for mutual gain.
4. Insist on objective criteria.
From these four principles, we moved on to discuss the fundamental elements of mediation—impartiality, confidentiality,
consent, non-maleficence, equality, legality, and integrity—and how these qualities are essential to conducting mediation
properly and successfully. So as a practice which has such strict, fundamental guidelines and which concerns such an
important process as helping others resolve their disputes, any breach of those guidelines can be considered a breach of
one’s ethics. Depending on the context, that ethical breach could even become a legal breach. Therefore, it is imperative
that we keep ethical considerations in mind when we practice mediation in order to properly appreciate what a significant
responsibility it is to serve as a neutral third party to help others resolve their conflicts.
Throughout the rest of this topic, the final topic of this course, we will cover the most pertinent ethical and legal
considerations you must make as a mediator in order to round out your theoretical understanding of mediation. This way,
you will be fully ready to take the next step in your journey toward becoming the best mediator you can be.
13.3“Do No Harm”: Your Chief Responsibility to Participants
Do No Harm Transcript
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For all the time we have devoted to the importance of neutrality in the mediation process, maintaining neutrality is simply
one aspect of the bedrock principle to the entire mediation process. The mediator’s obligation is to facilitate the
mediation process in such a way that does no harm to those involved in the dispute. It is the principle of “Do No Harm”
which necessitates all of the principles and fundamentals of mediation. 1 In other words, as a mediator, your primary
responsibility is to ensure that whatever you do during the mediation process, you do in such a way that avoids doing
any harm to those involved in the dispute and their ability to proceed in finding ways of resolving their dispute—whether
within a mediation context or through other legal options.
This is of the utmost importance to keep in the front of your mind, as “Do No Harm” is very distinct from the goal of
“doing good” which many of us may hold. While the idea of “doing good” is aspirational and noble, unfortunately, “doing
good” often involves taking actions which still carry the potential to wind up doing harm in the end. This means that at
any given moment during the mediation process, you must ask yourself whether you are fulfilling your responsibilities as
a mediator—and thus your ethical obligations to the process—or whether you are being aspirational in your thinking—
thereby taking unnecessary risks in the hopes of doing more good.
Ultimately, you must recall that your aim as mediator is not to figure out the answer or resolve the dispute, even if you
feel you have the necessary tools, information, and the opportunity to do so. Yes, being a mediator puts you in a
position of great power. But with great power comes great responsibility. You are not responsible for solving the
problems you mediate. You are responsible for doing what you can to help those involved in the dispute solve the
problem on their own. It’s natural to feel an urge to intervene and make things better, but you must learn to temper this
instinct and try to remove your ego from the situation. Only then will you be able to pursue actions which adhere to your
principles and duties as a mediator and do not risk doing any further harm.
If you think the concept of “Do No Harm” sounds familiar, it’s because it also applies in the medical field in terms of the
duties and responsibilities of a doctor or medical practitioner. Any doctor who has undergone formal training will take the
Hippocratic Oath, which is an oath of ethics written by Hippocrates, an Ancient Greek physician. The oath contains the
line “First do no harm,” thus emphasizing the fact that a doctor’s ethical responsibility is to do only that which they know
will do no further harm to the patient.2
This principle applies to mediation because just as with medicine, in mediation there is great potential for harm,
intentional or unintentional. Since mediation is for the purpose of resolving conflict, typically the matters being disputed
carry heavy implications for those involved in the dispute. The disputants may feel they are risking their personal or
financial well-being by pursuing mediation. Add to that the fact that the emotional content of the dispute could make it
even more difficult for them to mediate. Therefore, mediation has the potential to do harm on an emotional level as well
as on a material level. There’s the possibility that the disputants’ relationship could be further harmed if the mediation
process is not handled properly. There’s the possibility that they could suffer psychological damage in the long term.
People are taking a great risk when they agree to participate in mediation, so you must handle their trust with the
appropriate degree of care with the chief aim of avoiding doing any damage.
Figure 13.1: A mediator’s obligation is to facilitate the mediation process in such a way that does no harm to
those involved in the dispute.
Image by cottonbro via Pexels.
That said, we should not take any sign of negative emotions to be an indication of damage. For instance, sometimes
negative emotions need to be expressed in order to be fully understood and then dealt with. Expressing negative
emotions is rarely pleasant. This is why, just like doctors, mediators must apply their best judgment in assessing what
constitutes harm. That way they can best mitigate harm while giving those involved the best chance to resolve the issue
on their own. This means incorporating the appropriate mediation type, formatting the mediation using both one-on-one
meetings and group settings, and utilizing the various mediation techniques we have covered over the last two weeks in
order to ensure the process is carried out in a way that risks as little harm as possible.
This also applies to considerations of any proposed settlement, particularly when that settlement may pertain to another
third party. Not only must a mediator ensure no harm is done to any of those involved in the dispute, but they must also
be wary of any harm that could be done to a third party. For instance, if the mediation is for a divorce, that third party
may be the children of the disputing spouses. Sometimes the matters being disputed have implications for the general
public, such as with a public project or property or a company whose products are used by a wide slice of the
population. While these third parties are not privy to the discussions taking place in the mediation process, it is the
mediator’s responsibility to also consider the best interests of any applicable third party and bring those interests to the
attention of those involved in the dispute.
13.4Competence and Professional Role Boundaries
Now that we have spent some time solidifying our understanding of the “Do No Harm” principle, we can shift our attention
to some of the more specific ethical considerations we must make during mediation which stem from that principle.
Previously we had touched briefly on these topics from the perspective of looking at the fundamental elements of
mediation. However, it will help us now to look at these topics from the perspective of matters of competence and the
professional role boundaries of the mediator. That way we will better understand the specific ways in which we practice
“Do No Harm” throughout the mediation process. In this section, we are going to analyze what constitutes a conflict of
interest in the context of mediation, the different forms a conflict of interest may take, and matters of consent and
confidentiality.
Conflict of Interest and Avoiding Undue Personal Gain
Throughout our topics on mediation, we have discussed at length the importance of impartiality in practicing mediation
successfully. We have also spent considerable time this week developing our understanding of bias and the influence it
could have on the mediation process. However, our discussions of bias were mostly focused on forms of unconscious
bias—that which takes place outside of your conscious awareness and relates to your own sense of identity and how your
experiences in life have shaped your opinions and understanding of others. However, aside from unconscious bias, we
must also be wary of any and all forms of conflict of interest. They are distinct from bias but could have just as corrosive
an effect on impartiality, thereby jeopardizing the entire mediation process.
In the case of mediation, a conflict of interest constitutes any form of preference for a particular outcome in the resolution
of the dispute, whether that interest is financial, professional, or even personal. 1 A mediator may have a personal conflict
of interest if they know one of the participants outside of the context of the mediation process. Or a mediator may have a
financial or professional conflict of interest if they are employed by a company that has ties to one of the parties involved
in the dispute.
Of course, there are examples that might belong more to a gray area than those outlined above. In any case, in answering
the question of what counts as a conflict of interest, it is always better to err on the side of caution and full disclosure.
Given the importance of neutrality to the smooth functioning of the mediation process, any and all potential conflicts of
interest must be made known to those participating in the dispute so they have all the information they need to make an
informed decision. If the participants become aware of that conflict of interest from some other, external circumstance, it
would be sure to wreck that mediator’s credibility in the eyes of those participating in the dispute. Thereby, it could do
potential harm to them and breach the mediator’s principal responsibility to “do no harm.” Furthermore, if a mediator
determines, based on his or her own judgment, that the conflict of interest is considerable enough to pose the risk of
harm, then that mediator has the duty to decline taking on the particular dispute.
Undue Influence
Mediators also have a responsibility to avoid any form of undue influence. Unfortunately, even though mediation seeks to
be an entirely fair process, because it deals with matters of material or personal dispute, frequently there are individuals
who seek to tip the scales of the process in one direction or another by exerting undue influence on the mediator. In this
context, undue influence is any form of exerted pressure on the mediator to cause them to act in a way that serves to
benefit someone else.2 For instance, when it comes to mediation concerning serious matters or disputes where a large
financial or material reward is at stake, a mediator may find themselves subject to harassment, threats, or even deception
as forms of undue influence. As frightening as this may sound, it is the mediator’s responsibility to remain absolute in their
commitment to preventing any outside voices from influencing the mediation process. They are to facilitate the process in
such a way that takes into account only the best interests of those involved in the dispute and the principles of impartiality
and honesty.
Impartiality
We have touched on the significance of impartiality throughout this material. Rather than reiterate that, we can look at
impartiality from the perspective of ethics. At this point, we can recognize that the process of mediation is one of
engagement. Engagement with those involved in the dispute will invariably lead to developing certain feelings or
sentiments, either about the matter being disputed or about the disputants themselves. Thus, impartiality is not so much a
matter of refraining from having any sort of feelings or sentiments about the matter but about being adequately equipped
to deal with those feelings and sentiments to ensure they do not influence your decision-making during the mediation
process. Having a feeling or preference does not automatically mean you have failed at your duties as a mediator and that
you must withdraw from the case. On the contrary, all it means is that you are having a natural human response to the
details emerging from the dispute. You must rely on your training and your knowledge in order to keep those feelings to
yourself. This will involve managing your manner of speaking, your affect, and your nonverbal forms of communication. It
will also mean having the wherewithal to understand when your feelings about a particular matter are too great an
impediment to your responsibilities as a mediator. In this situation, you can request to withdraw from the case.
Honesty
When it comes to mediation, your ethical responsibility to honesty concerns a few matters. These include your prior
experiences, your list of qualifications, what the mediation process is going to cost in fees to those engaged in the dispute,
and any other matters you believe could reasonably affect the participants’ willingness to be a part of the process. This
also extends to disclosures that are made throughout the mediation process, especially individually to each party. For
instance, say one party, Party X, discloses their “bottom line” to you in a private session. In a separate private session, the
other party, Party Y, asks you if you have knowledge of what Party X’s bottom line is. If you were to answer no, that would
be dishonest. However, if Party X requested that you keep their bottom line confidential, your obligation would be to
answer that you do know Party X’s bottom line, but that you have agreed to maintain that matter confidentially. The same
policy of confidentiality would extend to any matters that Party Y were to disclose to you on a confidential basis. This
example illustrates how tricky honesty can be in the mediation process. It involves maintaining honesty without abusing
trust and handling privileged information in a delicate way.
Consent and Confidentiality
As illustrated in the above example, beyond impartiality and honesty, there are other ethical considerations one must
make as a mediator. Namely, they are consent and confidentiality, both of which relate to a mediation process
participant’s right to self-determination. This notion of self-determination, or party autonomy, is one of mediation’s guiding
principles. That is because the process is built not to fix problems for people but to help people fix their own problems.
Therefore, mediators must uphold ethical principles that better enable individuals to practice party autonomy and make
their own decisions—both as individuals and as a collective of those engaged in the dispute. Mediation is not a place for
the mediator to impose his or her ideas on those whose dispute is being mediated. Rather, mediators ought to remind
disputants that, ultimately, the power is theirs to do as they wish. For instance, a mediator might ask the parties how they
would handle a matter, what they think is an equitable outcome, and what they believe about their own position in the
dispute. Asking questions like this and being a good facilitator, rather than a director or leader, means that the parties
involved in the dispute have a better chance of arriving at their own conclusions. Furthermore, it is when they arrive at
their own conclusions that they will feel more committed to upholding the outcome of the mediation, whatever it may be.
Figure 13.2: Any information shared during a mediation process must remain confidential.
Image by Kristina Flour via Unsplash.
Consent
In order for a resolution to actually serve the disputants’ interests, it must be a resolution they arrived at by their own
volition and self-determination. This means that as a mediator, your responsibility is not to come up with solutions for the
disputants but to facilitate the conversation in a way that will give them the information they need to make an informed
decision for themselves.
Confidentiality
Most mediation sessions will begin with a disclosure given by the mediator to the participants, informing them that any
information they share during the mediation process will remain confidential. A mediator will inform the disputants that the
mediator cannot be called to testify as a witness in court regarding the details of what takes place in any mediation
process they facilitate. This is written into the legal system of most states in the United States. It thereby ensures the
neutrality of the mediation process and gives those who choose mediation the safe space they require to communicate
openly about their issues so they may have a better chance of reaching a solution.
13.5Summary
In this final topic, we have closely examined the role that ethics plays in the mediation. We have asked ourselves what
ethical considerations we must make when we mediate on others’ behalf and how ethics relates to questions of bias and
our fundamental duties as mediators. While we may have previously relegated the question of ethics to our gut feelings
and our moral compass, we now understand what exactly ethics is. We have also familiarized ourselves with frameworks
for approaching ethical considerations in mediation.
We spent considerable time studying the matter of “Do No Harm.” For all the time we have devoted to the importance of
neutrality in the mediation process, it was in this topic that we recognized maintaining neutrality as simply one aspect of
the bedrock principle to the entire mediation process—which is the mediator’s obligation to facilitate the mediation process
in such a way that does no harm to those involved in the dispute. We acknowledged that as a mediator, your primary
responsibility is to ensure that whatever you do during the mediation process, you do in such a way that avoids doing any
harm to those involved in the dispute and their ability to proceed in finding ways of resolving their dispute. This includes
within a mediation context or through other legal options.
We were able to distinguish between “Do No Harm” and the goal of “doing good”—which many of us may hold. We
recognized that although the idea of “doing good” is aspirational and noble, unfortunately, “doing good” often involves
taking actions which still carry the potential to wind up doing harm in the end. This means that, ultimately, you must recall
that your aim as mediator is not to figure out the answer or resolve the dispute, even if you feel you have the necessary
tools, information, and the opportunity to do so.
Yes, being a mediator puts you in a position of great power. But with great power comes great responsibility, and you are
not responsible for solving the problems you mediate. You are responsible for doing what you can to help those involved
in the dispute solve the problem on their own. It’s natural to feel an urge to intervene and make things better, but you must
learn to temper this instinct and try to remove your ego from the situation. Only then will you be able to pursue actions
which adhere to your principles and duties as a mediator and do not risk doing any further harm.
Congratulations on having made it this far. Only your last few assignments stand between you and completion of this
course!