Mediation Ethics: From Theory to Practice, Field, Rachael and Crowe, Jonathan. Edward Elgar Publishing, 2020

• Main Author: Dorcas QUEK ANDERSON
• Format: text
• Language: English
• Published: Institutional Knowledge at Singapore Management University 2021
• Subjects: mediation ethics; neutrality; self-determination; impartiality; Dispute Resolution and Arbitration
• Online Access: https://ink.library.smu.edu.sg/sol_research/3699; https://ink.library.smu.edu.sg/context/sol_research/article/5657/viewcontent/MediationEthics_bkrev_av.pdf
• Institution: Singapore Management University

For too long within the mediation field, there has been confusion on how the foundational principles of mediator neutrality, impartiality, and self-determination work together to bring about a fair outcome. There has been a corresponding lack of clarity on what the mediator does to ensure that these principles are collectively fulfilled through a consensual settlement. Astor (2007), who has written extensively on mediator neutrality, has described the mediator's role as maximizing party control. However, Astor also comments that making decisions aimed at maximizing party control is not simple and highly dependent on the context. The mediator has to intervene in order to fulfill this goal, but they are “not given a license to impose their own views and ideologies on unwilling parties.” “Rather they must decide whether their interventions are necessary in the circumstances or whether they should avoid intervening in order to give the parties the maximum control possible” (Astor, 2007, p. 236). The type of mediator intervention appears to be very difficult to determine, being highly dependent on the mediator's contextual assessment of the parties' level of autonomy.In this publication, Field and Crowe have boldly confronted these long-standing difficulties and have made a radical proposal for a new framework of mediation ethics. As suggested by the chosen title, the authors grapple with the practical difficulties caused by theoretical incoherence within mediation ethics. In essence, they contend that the reliance on neutrality and impartiality in current mediation ethics is unrealistic as it ignores issues such as the reality of the mediator's power and does not guide mediators to proactively deal with power imbalances in order to advance the parties' self-determination. In practice, the mediator is required to actively intervene in the process to take into account the distinctive needs of the parties. Such a mediator may not truly be neutral in the sense of being detached and disinterested in the dispute, or impartial by treating parties identically and objectively. The authors therefore propose a new paradigm of mediation ethics focusing on relational party self-determination—mutual self-determination for the parties achieved in relationship with each other—and complemented by an emphasis on informed consent and an ethos of professionalism. Their carefully constructed framework represents a commendable attempt to introduce both theoretical coherence and practical guidance to mediation ethics.