Mediation Ethics and Law: Self-Determination, Impartiality, Confidentiality, Study notes of Conflict Management

Download Mediation Ethics and Law: Self-Determination, Impartiality, Confidentiality and more Study notes Conflict Management in PDF only on Docsity! 121 Lesson 36 LAW AND ETHICS OF MEDIATION II Quotation 'Golden Rule'-- 'do unto others as you would have them do unto you'. Law of mediation is being developed but ethics are important in the initial stages. It seems as role of ethics neglected until now. Mediation is non-adversarial alternative to dispute resolution. Mediation is not a forum for misbehavior. Failure of mediation may lead to adjudication; hence mediation must work under the framework of appropriate law. Mediation is flexible. • Keeping promises as a process or consequence • Mediation is based on ethics and on which law is based. Ethics change with time, places and communities. • Right act is one where we are able to maximize the good • Society operates within the blinders and distortions created by the invisible veil. • Some people value actions lies in the motives rather than the consequences. • Mediation is a flexible process. Any mediator has to modify the process and approach to understand and resolve the issue. The mediators are encouraged to be creative and tailor each mediation to meet the needs of all the parties to a dispute. • The purpose of ethics in mediation is to handle emerging issues while doing mediation. Mediation is a voluntary, non-binding process involving a neutral third party to help the disputants to reach a mutually beneficial agreement to resolve the issue. • A mediator helps the disputants reach an agreement by facilitating communication, promoting understanding, assisting them in identifying and exploring issues, interests and possible bases for agreement, and in some matters, helping parties evaluate the likely outcome in court or arbitration if they cannot reach settlement through mediation. Role of ethics in mediation The role of ethics in negotiation has been neglected. Often when people talk about what is ethical they immediately talk about what they feel people should do and how we can persuade them to come round to our way of thinking. However, this sort of discussion presumes certain conventions of what is right and wrong without looking at the theories behind these connotations of rights and wrong. Negotiation, and mediation, occurs between people. It will vary with the disposition and traits of the parties involved. The ethical beliefs will color perceptions and approaches to bargaining and results of the mediation. In all cases a mediator needs to pay attention to the values that the parties express. Mediation must be dedicated to the principle that all disputants have a right to negotiate. Kevin Gibson, Department of Philosophy University of Colorado Boulder Mediation is Not • toothless • just a compromise • a bar to arbitration or litigation • what lawyers or managers do ‘all the time’ • a waste of time and money if it fails • yet another cost to the unfortunate parties • a sign of weakness • to avoid courts • to disclose your hand necessarily • to be risky • a kind of counseling docsity.com 122 Why is Mediation Regulated? The regulation of mediation can be best understood as a series of efforts designed to protect and preserve the essence of the process, to ensure its effectiveness, and to ensure that, as it is used, other legal rights and obligations are not damaged. The more radical wing of the ADR movement argues that the presence of the invisible veil keeps us from truly realizing the promise of mediation. • To preserve the essence of mediation • To ensure the effectiveness of mediation • To protect other legal rights of the participants to a dispute The authors present these model standards of conduct for mediators to serve three major functions: as a guide for the conduct of mediators, to inform the mediating parties, and to promote public confidence in mediation as a process for resolving disputes. 8 Dimensions of Ethics in Mediation Following are the 8 dimensions of ethics in mediation. 1. Self-determination 2. Impartiality 3. Conflicts of interest 4. Competence 5. Confidentiality 6. Quality of the process 7. Advertising and solicitation 8. Fees 1. Self-determination: A mediator shall recognize that mediation is based on the principle of self- determination by the parties. Self-determination requires that the mediation process rely upon the ability of the parties to reach a voluntary, un coerced agreement. Any party may withdraw from mediation at any time. 2. Impartiality: A mediator shall conduct the mediation in an impartial manner. A mediator shall mediate only those matters in which he or she remains impartial and evenhanded. If at any time the mediator is unable to conduct the process in an impartial manner, the mediator is obligated to withdraw. A mediator should guard against partiality or prejudice based on a party's personal characteristics, background or performance at the mediation. 3. Conflicts of interest: A mediator shall disclose all actual and potential conflicts of interest reasonably known to the mediator. After disclosure, the mediator shall decline to mediate unless all parties choose to retain the mediator. The need to protect against conflict of interest also governs conduct that occurs during and after the mediation. A conflict of interest is a dealing or relationship that might create an impression of possible bias. Without the consent of all parties, a mediator shall not subsequently establish a professional relationship with one of the parties in a related manner, or in an unrelated manner under circumstances that would raise legitimate questions about the integrity of the mediation process. Pressure from outside the mediation process should never influence the mediator to coerce the parties to settle. 4. Competence: A mediator shall mediate only when the mediator has the necessary qualifications to satisfy the reasonable expectations of the parties. Mediators should have information available to the parties regarding their relevant training, education, and experience. The personal competence requires appropriate knowledge about personal, local, and universal human values. 5. Confidentiality. A mediator shall maintain the reasonable expectations of the parties with regard to confidentiality. The parties' expectations of confidentiality depend on the circumstances of the mediation docsity.com