Mediator's Ethics: Does it Include a Just Outcome for the Disputants?

Yesterday I attended the Southern California Mediation Association's 21st Annual Conference. The piece by Professor/Dean Peter Robinson of The Straus Institute of Dispute Resolution at Pepperdine University really caused me to examine my practice. Although the talk was billed as "Ethics for Mediators", Professor Robinson provoked us to question whether mediator's have a heightened duty to make sure that whatever agreements we "broker" have legitimacy, integrity and meet legal standards. The legal standards would, of course, include only those agreements which were not entered under duress or coercion, were based upon informed consent and entered into by a person of sound mind and capacity. Robinson suggests that this is all the more important because if a party enters into an agreement in the context of mediation, he or she can never establish that the agreement was unfair and therefore set it aside later. Hmmm...This puts a burden upon the lawyer mediator that I'm not sure I'm willing to accept. I was pretty satisfied being staunchly "impartial" and allowing the parties to exercise their self determination. And yet....It's noteworthy to point out that there are Model Standards for Mediators, which are a little different from those adopted here in California, that require both self-determination and fairness. Occasionally, these contradict one another. I have frequently presided over mediations in which I believed that one side was getting an unfair "deal"--but did not intervene to re-balance the terms of a deal which both sides agreed to enter into. While I routinely "test" whether there is money left on the table, for example, I typically refrain from interfering in a negotiation which seems to me to be imbalanced. I assume that each party, always acting through their attorneys in my case, have their own reasons for doing what they are about to do--even if it doesn't make sense to me. There is something driving them to reach the deal that they strike--and I'm generally satisfied that I need not safeguard the "outcome", just the fairness of the process. Robinson's lecture suggests otherwise. I'm still examining...

Doing the Right Thing Correctly

I took a wonderful Class this Week given by Peter Robinson, Dean of the Straus Institute of Dispute Resolution at Pepperdine University and Robert Benjamin from Portland, Oregon. Peter spoke about the role of Apology in Mediation. I was struck by the discordance between what most of us agree is "good" and what most of us agree is "right". He offered the example of a child who throws a ball through the neighbors window. There, most of us would insist that our child go over to the neighbors, acknowledge his wrongdoing, offer to make reparations and ask for forgiveness. On the other hand, in a collision on the 405 Freeway, we would likely not consider offering to pay for the damages and asking for forgiveness on the scene, as this may wreak havoc with our insurance carrier's official "policy". I'll share a moment of grace from this past week. Many years ago, my husband and I had a falling out with a lawfirm where I was subletting over a series of errors in a document they were preparing for his business. We refused to pay the bill, and I lost my office. This week, for the first time in about 6 years, that attorney (now turned mediator) took me out to lunch. He reached out to me, acknowledged that he never felt good about the way that was handled and asked for our forgiveness, or at least understanding. I don't know whether it's a metaphor or reality, but since I saw this gentleman last, he has gone for a PHd in Divinity and lost 140 pounds. So he's been touched by grace and is substantially lighter than he was when last we saw one another. So the next time you stop to flog yourself over something you've done wrong--reach out to your assailed one, and apologize. It's right and good...and you may even find yourself lighter and feeling better all the way around!