Vol 35, No 1 (2017): Ethics in Alternative Dispute Resolution

Introduction

ADR processes are now used extensively in Australia to resolve disputes in courts and tribunals. In addition, government departments see ADR as an important tool in improving access to justice for ordinary citizens. However, what justice means in different ADR contexts may differ. One possible explanation for the divergence of views on justice and ethics in ADR practice is the fact that practitioners come from different professional backgrounds and disciplines and also use a range of processes. Also, while some processes have clearly stated normative purposes under enabling legislation and Charters, others do not. There are also industryscheme ADR processes with normative purposes beyond individual disputes. Drawing from empirical research, this paper begins to explore the relationship between process purpose, underlying values and ethical responsibilities that arise for a range of ADR practitioners working in different fields and the potential of those processes to promote substantive and procedural justice.

We are living in an era of vast inequality. Income and wealth gaps between ‘the haves’ and ‘have-nots’ have reached epidemic proportions. The top 1 per cent of earners in the United States pulled in a whopping 19.3 per cent of household income in 2012, their biggest slice of total income in more than 100 years. In 2014, the World Economic Forum listed severe income inequality as the number one global risk and Tom Piketty’s unlikely best seller, Capital in the 21st Century, documented the rising ratio of wealth to income and the growth of a ‘rentier class’. Even in Australia, where the mining industry continues to power economic growth, the income and wealth gap between the lowest and highest quintile of earners is stark. According to recent data, the top 20 per cent of Australians earn five times the income of the bottom 20 per cent, while holding 71 times more wealth. The question for mediation scholars and practitioners is whether this growing gap is affecting the way in which society’s ‘haves’ and ‘have-nots’ access and experience mediation. At the low end of the socio-economic totem pole, government cuts in legal services – combined with mediation practitioners’ obsession with neutrality – potentiate uninformed decision-making by unrepresented parties. At the high end, models of practice catering to legal professionals’ preferences threaten to rob mediation of its transformative, therapeutic potential. This paper will explore these troubling developments and query whether growing social inequality should precipitate shifts in our thinking about mediation ethics and the way we educate the next generation of lawyers.

Revision of the National Mediator Accreditation System, effective from 1 July 2015, removes the requirement for mediators to demonstrate understanding of neutrality as an ethical competency. The principle of impartiality has been retained and the principle of self-determination has been newly included as an ethical competency. The self-determination of participants, recognised in the original version of the NMAS, has been more clearly articulated as the aim of mediation practice. Abandonment of the principle of neutrality signals a need to reconsider the role of the mediator, which was once identified with control of the process of mediation, though neutral as to its content and outcome. Abandonment of neutrality calls for an alternative frame of reference for ethical practice in mediation. In this paper, the relationship of trust between mediator and parties is proposed as a suitable and defensible alternative ethical framework. It is argued that this relationship can be constructed according to principles associated with fiduciary and therapeutic relationships, in recognition of the distinctive socio-legal context of practice. Abandonment of neutrality also raises issues as to the mediator’s role in achieving fairness for participants. It is argued that relationships of trust provide a convincing framework within which to consider issues of substantive fairness in mediation.

Ethical decision-making by mediators is, of necessity, contextual in nature. When mediators are confronted with an ethical dilemma such that they must choose between two or more ‘right’ or ‘good’ but contradictory courses of action, they must take numerous case-specific factors into account in arriving at a decision that they can justify. This article identifies some of the factors which mediators might take into account in deciding what is the ‘ethically fitting’ course to be followed. It provides detailed discussion of three factors which impact ethical decision-making by mediators. They are: the objectives and values given priority in mediation; the approaches or models of mediation chosen by a mediator; and the standards of conduct to which mediators are subject. In discussing these factors, attention is given to the debate concerning the appropriateness of evaluative mediation. Attention is also drawn to the difficulty involved in drafting standards of conduct for mediators. The focus of the discussion about mediator standards of conduct is upon Australia’s National Mediator Accreditation Scheme Practice Standards. As with most mediator standards, inevitably they provide no more than a set of core principles or values which form a framework for ethical decision-making by mediators.

Over the last 20 to 30 years, the use of mediation in Australia to resolve family disputes has grown significantly. Since the 2006 reforms to the Family Law Act 1975 (Cth), family dispute resolution, a common form of which is family mediation, has effectively become a compulsory first step in post-separation parenting disputes that enter the family law system. There are many good reasons for encouraging parties to participate in family mediation. Mediation is a flexible, cost-effective, time-efficient, more humane, less adversarial way for families to manage and resolve post-separation disputes. Family mediation is also a process that enables party self-determination, empowering the parties to determine together the best arrangements for their family into the future. However, vigilance is required if the capacity of each party to negotiate towards a mutually agreeable outcome is to be effectively sustained and the full potential of the benefits of mediation are truly to be achieved. In this article, we use Ludwig Wittgenstein’s concept of a language game and the related notion of a clash of genres to explore some of the underlying conventions and expectations that create challenges for the parties in family mediation. We then consider how mediators might respond to these challenges and the implications this holds for mediator ethics.

Mediation forms a core part of dispute resolution initiatives in family law and civil litigation. This article considers several ethical issues confronting mediators in family and civil disputes. We compare ethical frameworks, drawing on issues arising from mediation practice in two specific court-connected fora. Further, we make recommendations for changes to existing mediator training and to applicable standards and codes.

An owners corporation is the legal entity in Victoria that holds jointly owned assets in housing developments such as apartments, medium density townhouses and master planned estates. In Victoria, the legislation governing these entities is the Owners Corporations Act 2006 and specific sections of the Subdivision Act 1988. Conflicts in owners corporations are not uncommon and the owners corporation or strata managers may informally mediate disputes. This article will outline research into the experience of conflict in owners corporations from the perspective of strata managers and discuss mediator ethics in this context. Managers, as informal ‘insider’ mediators, may experience a number of ethical dilemmas, most notably the issue of impartiality/ neutrality. They are part of a growing group of mediators that operate outside of the National Mediation Accreditation System. The article suggests the need for a community of practice of managers who informally mediate so that ethical concerns in their specific context can be shared and debated.

The justice system and the practice of dispute resolution and conflict handling have co-evolved in recent decades. Practitioners face challenges that raise questions about (i) the justice system as a whole, and (ii) the range of processes currently available for resolving disputes and conflicts. These broader questions should be addressed by alternative dispute resolution practitioners, and by the designers and administrators of systems for appropriate dispute and conflict resolution. There have recently been several major initiatives in Australia in response to institutional abuse and sexual offending. This paper explores one of these initiatives: the Defence Abuse Response Taskforce. The Taskforce was established to address institutional abuse and sexual offending in the Australian Defence Force. It raised a number of important ethical questions and offers valuable lessons about appropriate justice approaches in complex matters.