Mediating Ethically: The Limits of Codes of Conduct and the Potential of a Reflective Practice Model

Abstract

Discussions regarding the appropriate ethical behaviours for mediators and the subsequent development of formal codes of conduct have focused on hallmark issues such as third party impartiality and party self-determination. However, in an informal process, ethical choices are inherent in every intervention made by a mediator. In adopting the standard-setting approach of an adjudicative model, mediator codes of conduct are a poor fit with the conceptual and structural characteristics of this fluid, uncertain, and essentially private process. Confining the substantive and conceptual debate over mediation ethics to formal codes dangerously underestimates both the scope and the significance of choices faced constantly by intervenors in their process management role. A disclosing and questioning dialogue among mediators and others, using Schönian principles of reflective practice, is proposed as a more candid and complete recognition of the ethical dilemmas that arise in mediation. Two real-life case studies drawn from the writer's experience are used to illustrate this approach.