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What are Codes of Conduct? 

Ethics concerns the morality and rules by which human behavior is guided. This includes, but is not limited to, standards of professional practice. [1] Those working in conflict resolution (arbitrators, mediators, or facilitators) face a variety of complex ethical questions.

These ethical issues can be related to the disclosure or non-disclosure of information, honesty and dishonesty, and confidentiality. Often issues arise because of power imbalances among the parties, dishonest or unfair mediation techniques employed by the mediator, or questions of public interest. Codes of conduct can be thought of as ethical guidelines governing the way dispute resolution practitioners deal with these various issues.

The first codes of ethical standards for intermediaries were developed in the United States and Canada, but a number of other countries have begun to use them as well. Rules cover the responsibilities of the mediator to the disputing parties, to the mediation process, to other mediators and one's profession, and to unrepresented third parties and the general public. [2] Common ethical issues surround the disclosure of information, confidentiality, impartiality, fairness, and questions of public interest. Standards of conduct can help to resolve the various ethical problems that arise for mediators and other dispute resolution professionals.

Guidelines For Mediators

As the dispute resolution field has developed, many theorists have become interested in formulating clear ethical standards for mediation practice. Motivations for devising a code of conduct include the desire to educate the public and mediation practitioners about ethical practice, a perceived need to ensure that mediations are carried out in accordance with high ethical standards, and a wish to promote public confidence in mediation as a dispute resolution process. [3] As an impartial participant whose job it is to facilitate conflict resolution processes, the mediator faces specific ethical demands.

Truth in Advertising: First, mediators should be truthful in their advertising and in the solicitation of participants, and refrain from promises and guarantees of results. Any communication with the public concerning services offered or regarding the education, training, and expertise of the mediator should be truthful. [4] In addition, mediators should accept only those cases where they have sufficient knowledge and expertise in terms of process and substance. A key ethical skill is the ability to recognize limits to one's personal competence. Thus, the mediation process should take place only if the mediator has the necessary qualifications to satisfy parties' reasonable expectations. Mediators should have information they can provide to the parties about their relevant training, education, and experience.

Selecting Cases: Interveners should also be aware that there are cases when conflict resolution techniques are inappropriate and should not even be attempted. If a mediator recognizes that mediation is inappropriate for particular participant or dispute, he or she has a responsibility to address this issue. This may mean educating parties about other dispute resolution options, referring them to more specialized services, or simply withdrawing from the process. In addition, mediators should take on only those matters in which they believe they can remain impartial and evenhanded. Before the process begins, they should be forthright about any circumstances that may create or give the appearance of a conflict of interest. [5] After disclosure, if one of the parties does not wish to retain the mediator, that mediator must withdraw from the process.

Disclosing Fees: Before a process begins, a mediator should fully disclose and explain the basis of compensation, fees, and charges to the parties. Parties can then decide if they wish to use that mediator's services. Any fees charged should be reasonable and take into account the sort of mediation service used, the type and complexity of the matter, the expertise of the mediator, the time required, and the rates customary in that community. [6] If a mediator needs to withdraw from the process, any unearned fees should be returned to the parties. Fee agreements should not be contingent upon the result of the mediation or amount of the settlement.

Discuss Expectations: It is also important, before mediation begins, for all parties to understand their own and other participants' expectations of the process. This includes an understanding of the nature of the process, the procedures it will involve, and the role that the intervener will have. Mediators should provide fair and honest descriptions of the process so that parties can give their "informed consent" to participating. [7] They should also clarify their own expectations about the process.

Fair Process: Once mediation is underway, interveners should try to conduct the process fairly, diligently, and in a way that upholds the principle of self-determination. Many believe that neutrality and/or impartiality on the part of the mediator are crucial in conducting a fair intervention. Others, however, especially people working outside of North America do not see neutrality as critical. As a matter of fact, John Paul Lederach, a leading scholar and practitioner of mediation in Latin America has observed the preference there for what he calls "insider-partials"---mediators who are from one of the disputant groups or communities (hence "insiders") who actually favor one side over the other (hence "partial.") In order to be effective, however, such insider partials need to have a stellar reputation for honesty and fairness with both sides. Oscar Arias's mediation of the Nicaraguan conflict between the Sandinista's and the East Coast Indian tribes is an example. [8]

Mediation Goal: The mediator's interest should be in devising a lasting resolution, not in coming to any specific resolution. He or she should guard against partiality or prejudice with respect to the parties' personal characteristics and strive to conduct the process in an unbiased manner. Of course, this does not mean that the mediator must be devoid of opinions. Like all human beings, mediators have values, attitudes, prejudices, and beliefs Nonetheless, the mediator should be aware of these values and prejudices and ensure that they do not intrude on the process. Interveners must not seek to advance their own interests nor show no any personal interest in the terms of the settlement. [9] If at any time the mediator feels unable to conduct the process in an unbiased manner, he or she is obligated to withdraw.

Balance of Power: Mediation processes should protect the right of the parties and leave no room for coercion or manipulation. Because power imbalance between participants can be a major problem for mediation, the mediator should try to ensure that the powerful participants in the process do not manipulate, dominate, or control the less powerful participants.[10] One of the intervener's jobs is to make sure that participants feel safe and protected. Parties should be free to consider various options, reflect on those options, or take advice. They have a right to be treated fairly and with respect, both by mediators and fellow participants. If they feel the need, parties should be free to take a time out.

Mediator Involvement: Note that the degree to which mediators should become actively involved is often an issue. Should the mediator have a role in directing parties towards resolution? If the mediator sees an obvious practical option, should he or she offer it? Should the mediator facilitate decision-making or direct it? Most theorists believe that to maintain fairness and integrity, mediators should ensure that all parties have an opportunity to be actively involved in the decision-making process. This includes decisions about when and under what conditions they will reach an agreement or terminate the mediation process. Interveners must also make sure that the parties have reached agreement of their own volition and knowingly consent to that agreement. [11]

Consent: In order to give their consent, parties must fully understand both the mediation process and the options under discussion. If one of the parties does not have the capacity to participate, the mediator must terminate the process. Because it is not easy to determine a party's capacity, interveners must be constantly vigilant in promoting informed participation. Respectful screening processes that can assess mediation readiness or capacity are crucial for successful mediations. In the event that one or more of the parties is unable to participate due to drug, alcohol, or other physical or mental incapacity, the mediator should withdraw. [12] Toward the end of the proceeding, if a dispute resolution practitioner is concerned about the possible consequences of a proposed agreement, he or she should inform the parties of that concern so that they can give full and genuine consent. [13]

Confidentiality: Mediators should also be careful to uphold participants' rights to privacy and confidentiality. This includes an obligation to discuss confidentiality rules with the parties at the beginning of any proceeding and obtain party consent with respect to engaging in caucused mediation. This means that prior to undertaking private sessions with a party, the mediator should discuss the issue of confidentiality and clarify parties' expectations. [14] They should also be careful not to imply that confidentiality is absolute. If they mislead participants into thinking that proceedings will be totally confidential when in fact they are not, grievances are likely to result. Some theorists believe that a mediator should not disclose any matter that a party expects to be confidential unless given permission by all parties or unless required by law or other public policy. [15] For example, confidentiality might be abandoned to some extent if there is a risk it will have highly negative consequences for unrepresented third parties.

Others point out that there are instances in which one party discloses information to the mediator that is directly relevant to the conflict, but indicates that he or she does not wish the information to be disclosed to the other party. [16] In those cases where confidentiality comes into conflict with the ultimate goal of reaching a mutually acceptable solution, some believe mediators should err in favor of a lasting solution.

Should Mediators be Neutral and Honest?

It is commonly stressed that mediators need to be neutral and impartial and that both process and outcome need to be fair. However, when faced with the challenge of effectively managing conflicts, remaining neutral may not be a viable option. It is often unclear what neutrality even means. Does it mean the mediator will not intervene in the substance of the dispute; or that the mediator is indifferent to the welfare of the clients; or simply that the mediator has no personal relationship with any of the parties? In the event that the mediator believes there is a power imbalance or that one of parties is acting disrespectfully, should he or she attempt to address this? [17]

Various useful mediation strategies might be seen by clients as a violation of neutrality. For example, the caucus (meeting with each party separately) can be particularly precarious. Probing one of the parties' perspectives may also be viewed with suspicion. However, the mediator may in fact have a duty to question each party about their respective perspectives, raise concerns about those perspectives, and anticipate unintended consequences of solutions in order to ensure that parties' consent is fully informed and consensual. Nevertheless, it often these sorts of issues that result in grievances against mediators.

People like to think that if the mediator is neutral and disengaged, he or she will be more rational, dispassionate, and unbiased. But it seems that what parties really want is not a disengaged mediator, but rather someone who will listen to and validate their concerns. Moreover, in cases where an agreement seems completely unfair, unconscionable, or lacking in durability, it is unclear that a mediator should remain impartial or disinterested.

The most effective mediator will not be one that is distant and detached, but rather one "has permission to question both parties about their negotiating perspectives and inquire" about matters pertaining to an effective agreement. [18] Before they begin mediation, interveners should attempt to clarify the meaning of "neutrality" so that parties do not enter the process with unrealistic explications. One option is to describe the proper role of the mediator as "balanced" rather than neutral.

Peacebuilding and International Aid

In the context of civil conflict, every foreign actor, whether it be a government official, an IGO, or an NGO, is perceived as a potential mediator. Some studies of mediation suggest that in cases of violent conflict, interventions by multilateral organizations applying political leverage often have the greatest measurable impact. As a result, there is a great need for those intervening in the international arena to adhere to a code of conduct. A number of organizations have begun to institute codes of conduct formalizing rules and regulations for field activities. Beyond these codes of conduct, there is a simple demand for ethical behavior to ensure the credibility and physical security of foreign actors. Local populations typically keep a close watch on interveners' personal behavior, both in public and in private.

Intervention by foreign actors can either exacerbate and prolong the conflict or help to reduce tensions. Those intervening have a responsibility to carry out relief and development work? so that it alleviates suffering, protects human rights, and promotes a stable and just peace. However, when international interveners arrive in a conflict area, they are often so overwhelmed by violence going on there that they fail to recognize local capacities for peace. [19] They tend to regard violence and hatred as the only reality, and to neglect aspects of that particular society that connect people to each other. (See the associated essay on integrative power.)

All societies have systems for handling disagreements without resorting to violence, systems for limiting violence if it erupts, and groups of individuals who support peace. In these instances of complex emergency, it is important for interveners to identify and reinforce these local capacities for peace and strengthen interpersonal and intergroup relations.. Interveners have an ethical duty to empower people to become agents of change and transformation within their societies and to assume a central role in conflict resolution and transformation. [20] This means partnering with local people and drawing upon their cultural wisdom. Building on local conflict resolution capacities helps to promote respect for cultural diversity and to support the distinctive peacemaking roles of women. 

Many believe that foreign interveners should also strive to be inclusive in their work and to consider the interests of all relevant parties. This means not taking sides in conflict, refraining from bias and favoritism, and endeavoring to be open and transparent in their work. Rather than secretly supporting one group over others, interveners should work in collaboration with individuals, organizations, governments, and other institutions in an effort to prevent and resolve conflict. [21] To achieve their goals, they will often have to make a long-term, ongoing commitment to various peacebuilding processes.  They should acknowledge that once they enter a conflict setting, they become morally accountable to some extent for the results.

By Michelle Maiese 

ENDNOTES

[1] Gregory Tillett, Resolving Conflict: A Practical Approach, 2nd edition, (Oxford: Oxford University Press, 1999), 198.

[2] Christopher Moore, The Mediation Process: Practical Strategies for Resolving Conflict, 2nd edition, (San Francisco, CA: Jossey-Bass Publishers, 1996), 353.

[3] ibid.

[4] "Model Standards of Conduct for Mediation," The American Arbitration Association. Available at: http://www.adr.org/sp.asp?id=22118 .

[5] Norbert Ropers, "Enhancing the Quality of NGO Work in Peacebuilding," in Peacebuilding: A Field Guide, eds. Luc Reychler and Thania Paffenholz, (Boulder, CO: Lynn Rienner Publishers, 2001), 530-1.

[6] "Model Standards of Conduct for Mediation," The American Arbitration Association. Available at: http://www.adr.org/sp.asp?id=22118.

[7] Tillett, 200.

[8] Wehr and Lederach 1996, Mediating Conflict in Central America in Bercovitch (ed) Resolving International Conflicts: The Theory and Practice of Mediation

[9] Moore, 354.

[10] Tillett, 203.

[11] Jacquelyn Drucker, "Confidentiality and Other Ethical Issues in Mediation," Alliance for Education in Dispute Resolution Research, Available online here.

[12] Tim Hedeen, "Ensuring Self-Determination Through Mediation Readiness," Mediate.com, Available at: http://www.mediate.com/articles/hedeenT1.cfm.

[13] Ropers, 531.

[14] Drucker, Available online here.

[15] Hedeen, Available at: http://www.mediate.com/articles/hedeenT1.cfm.

[16] Tillett, 203.

[17] Robert Benjamin, "The Risks of Neutrality: Reconsidering the Term and Concept," Mediate.com, Available at: http://www.mediate.com/articles/benjamin.cfm.

[18] Moore, 355.

[19] Mary Anderson, Do No Harm: How Aid Can Support Peace-Or War, (Boulder, CO: Lynne Rienner Publishers, 1999), 23.

[20] Ropers, 528.

[21] ibid., 529.

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Michelle Maiese is a graduate student of Philosophy at the University of Colorado, Boulder and is a part of the research staff at the Conflict Research Consortium. Michelle Maiese is a contributor to Beyond Intractability which is an online “encyclopedia” compiling easy-to-understand essays on almost 400 topics which explain the dynamics of conflict along with available options for promoting more constructive approaches.