Mediation is becoming a vital part of family legal problem solving and is creating new challenges for the social service professional practicing in the family law setting. The governing bodies such as the HPCSA, SACSSP and SAAM also have attempted to define the appropriate realm of ethical experience for family mediation.’
A mediator helps the parties reach a resolution 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.
The adversarial divorce process, involving a attorneys is guided by adversarial ethics, frustrates the ability of divorcing spouses to fulfil their family legal obligations mandated by the state. Consequently, the mediated divorce has evolved as an alternative mechanism that promises to be more consistent with the state’s primary goals for the family.
The mediation process, like the adversarial process, necessarily generates a framework of ethical experience. Specifically, social service professionals in family dissolution mediation should have an ethical obligation to facilitate the post-dissolution division of family responsibilities. Although the underlying purpose of this article is to promote the use of mediation, it also focuses on the ethical values a social service professional should demonstrate when using their professional skills in divorce mediation. The premise is that the social service professional’s ethical standards are framed by the mediation process and family law as it affects separating spouses.
The social service professional engaged in divorce mediation must resolve a number of ethical dilemmas. For instance, how does a mediating social service professional promote each participant’s interests and yet facilitate the participants’ family legal obligations? Most of these ethical dilemmas stem from the diverse expectations of parties and legal complexities in some matters.
There is an expressed uneasiness with the social service professional who “represents” both partners in mediating a divorce settlement, and subsequently there have been a variety of responses to the ethical problems of mediation.
Issues to be addressed are for example if the organisation’s interest in promoting successful mediation conflict with the client’s interests, which may be better served by resort to adversarial litigation? Who has control of the mediation process and therefore directly or indirectly influences the social service professional’s judgment? Additionally, is providing mediation services through a centre or a mediation association different from providing mediation services from a private mediator? Is the mediator impartial or biased. There is still the ultimate problem of sufficiently protecting each partner’s rights, even if they avail themselves of independent legal advice. The discussion becomes sterile if we say that full disclosure and consent of both parties is sufficient to resolve the ethical dilemma.
Intelligent consent is made even more difficult by problems inherent in the mediation process, such as overreaching by the mediator, imbalance of negotiating power between the parties, and reluctance to abandon a failing mediation because of the heavy investments of time and money. Certain confidentiality and jurisdictional problems in the mediation process must also be addressed. Confidentiality in the mediation process is essential to preserve the open nature of the pro cess. Furthermore, as mediation experience evolves, individual jurisdictions will be pressed to regulate the mediators. Accreditation, regulation, competency evaluations, continuing education requirements, and disciplinary procedures must be developed to protect the clients of mediation services. A full discussion of these issues is beyond the scope of this module but the issues nevertheless deserve to be highlighted here.
The purpose of a code of conduct is to provide basic guidance to mediators regarding ethical issues that may arise during or related to the mediation process. Mediation is a voluntary, non-binding process using a neutral third party to help the parties reach a mutually beneficial resolution of their dispute.
Mediation is by its nature a fluid and flexible process. Mediators are not expected to adhere to any one process or approach, and are encouraged to rely on their creativity and experience to tailor each mediation as much as appropriate to meet the needs of the participants.
Mediators should be aware of applicable legislation or court rules that may apply to the mediations they are conducting. Mediators should also be aware of court-specific rulings or guidance as to whether and in what circumstances mediation may be considered the experience of law. These rulings may have an impact on a mediator’s experience in such respects as advertising and co-mediating with non-attorneys.
In addition, mediators should be aware of any state ethical standards regulating or guiding their efforts as mediators. Other professionals, such as licensed psychologists, also may have similar standards of conduct that may affect their mediation experience.
A mediator holds a unique position of trust. For mediation to succeed, the mediator must maintain the parties’ trust while moving them toward a suitable solution. This requires mediators to adhere to the highest standards of integrity, impartiality, and professional competence in their service.
In pursuit of quality services, social workers aspire and subscribe to the following ethical values and principles:
- Social justice
- Respect for people’s worth, human rights and dignity
- Professional responsibility
- Show care and concern for others’ well-being
- Service delivery
It is also important to be aware of what the parties consider to be ethical behaviour while keeping in mind our unified model of ethical guidelines. Personal ethics might also be called morality, since they reflect general expectations of any person in any society, acting in any capacity. One definition of culture says “culture is what everyone knows that everyone else knows.” These are the principles we try to instil in our children, and expect of one another without needing to articulate the expectation or formalize it in any way.
During mediation it is important to take not of the Principles of Personal Ethics which include:
- Concern for the well-being of others, doing good (beneficence)
- Respect for the autonomy of others (autonomy)
- Trustworthiness & honesty (fidelity)
- Willing compliance with the law, with the exception of civil disobedience (justice)
- Basic justice; being fair (fairness)
- Preventing harm (non-maleficence)
Ethics in the process is defined and maintained through the ground rules. Ground rules define appropriate ways of interaction. Ground rules are applying our principles to our actions, and reflect an agreed upon interaction for the parties. Ground rules typically would include full disclosure, good faith, speak openly, listen actively, respect for one another, voluntary participation and confidentiality. As we have seen these principles are based on virtues such as trustworthiness, truthfulness, integrity and respect.
Ethics in the outcome is using virtues and principles to evaluate the available choices. This model can be used with any of the four ethical categories in this paper. It is a way to evaluate our options based on our values. Mediation allows the parties the unique opportunity to work together to decide on a better future. Decision making criteria are the factors that differentiate one choice from another. They can include tangibles like time, people or money, questions like those listed below, virtues or principles mentioned above, or any combination. The criteria you choose will determine the quality of your action.
- Does it meet our values – virtues and principles?
- Does it improve the relationship of the parties?
- Would you be comfortable if your actions were publicized?
- Would you be comfortable if your family was observing you?
- Will it make you a better person?
- Would your decision withstand scrutiny?
- Does the decision show leadership through integrity, accountability and efficiency?
- Is your decision fair to yourself, family, colleagues, industry and community?
Another easy set of questions can be used as a simple ethical decision making model to guide the mediator’s actions:
- Is it the TRUTH? (virtue)
- Is it FAIR to all concerned? (principle)
- Will it build GOODWILL and BETTER FRIENDSHIPS? (reciprocity)
- Will it be BENEFICIAL to all concerned?”
Getting to Yes say that any method of negotiation may be fairly judged by four criteria: It should produce a wise agreement, it should be based on truth, it should be efficient, and it should improve or at least not damage the relationship between the parties.
Mediators are guided in their actions by the ethical standards of their respective governing bodies. These bodies can either be the SACSSP, HPCSA, SAAM, DISAC or FAMAC. These principles are designed to help the mediator resolve experience related issues and should be used to clarify and define appropriate responses to most situations. Written codes provide rules of conduct and standards of behaviour based on the principles of Professional Ethics. Even when not written into a code, principles of professional ethics are usually expected of people in a professional capacity and the aim is to protect both the clients and the professional and enhance the positive outcomes for all parties.