excerpted from 34 OHIO STATE J. DISP. RES. (2019) [footnotes omitted] A PLURALISTIC APPROACH TO MEDIATION ETHICS Baruch Bush

. . . . Where one has undertaken an obligation to act in a certain role for the benefit of another—as is typical in professional practice of all kinds—then ethical obligations to the client flow from that role itself. This is not an unusual view; on the contrary, it characterizes the views of professional ethics in many fields. Attorneys take on the role of “champion” of the client’s interests, and ethical obligations flow from that role, such as the prohibition against “dual representation”—since it is impossible to champion two adversaries simultaneously. Doctors take on the role of healer, and the ethical obligation to “do no harm” flows from that role, including the prohibition of administering treatments desired or even demanded by the patient that would actually harm him/her. Judges take on the role of “voice of the law,” and the ethical obligation to set aside any personal views and decide only according to the applicable legal rule, flows from that role. Arbitrators take on the role of “wise, experienced expert,” and the central ethical obligation that follows is to make a clear decision and not promote a compromise. In the case of each professional, the role s/he accepts defines the primary ethical obligation s/he owes to the client(s). And it defines which path to choose when a dilemma arises, because the role itself requires placing priority on one value over others that might compete.

In keeping with the concept of professional “role ethics,” it follows that the same concept applies to mediators. However, with mediation the issue is more complex, precisely because of the fact that two models of mediation are being practiced, each of which holds a different conception of the mediator’s role. This author argued long ago that mediators were enacting at least two different role conceptions: one viewing the mediator as facilitator of fair agreements—and thus as protector from unfairness—and the other viewing the mediator as supporter of party choice and communication regardless of the fairness of an agreement reached, or indeed whether any is reached at all. ?Both role conceptions, it was argued, imply ethical duties owed by the mediator to the clients. In many respects the ethical duties are the same under both. For example, obligations of impartiality, confidentiality, and competency are common no matter which role conception is followed. ?However, in one critical respect, the two role conceptions point mediators in very different directions. The protective conception implies an obligation to monitor and control against unfair outcomes even if it means limiting party choice; while the supportive conception implies an obligation to privilege party decisionmaking regardless of outcome fairness. Of course, some cases pose no conflict between ensuring fairness and supporting party self-determination. But where ensuring outcome fairness and supporting self-determination cannot both practically be achieved, mediators face a choice—and the choice they make will depend on what role conception they hold. In the terms of this article, it will depend on whether they follow the facilitative or transformative model in their practice.

It is worth noting that this tension between two views of the mediator’s role is deep and longstanding in the literature of the field. Nearly four decades ago, the debate between Professors Susskind and Stulberg over the mediator’s “accountability” for the fairness of agreements rested on this difference in conception of the mediator’s role—Susskind arguing for protection and Stulberg arguing for supporting self-determination as the higher duty. That debate has continued in force until the present day, and still animates discussion in the field. This lasting controversy reinforces the assertion that the dilemma of whether to protect against unfairness, or support party self-determination, is central to mediation ethics. And it is a dilemma that, unlike others, cannot be resolved by a single governing code applied to all mediators.

?????The mediation field is not short on ethical codes. On the contrary, codes or standards of conduct have been promulgated for many years by different agencies, including state court systems, professional associations, and even private mediation providers. These codes purport to offer guidance to mediators. At the same time, they can be seen as regulating the behavior of mediators, so that clients receive appropriate professional services. Whether regarded as guidance for mediators or consumer quality control for clients, ethical codes are an important presence in the field. However, these well-intentioned policy statements often create—rather than resolve—dilemmas for the mediators they are intended to guide and regulate. The reason for this is simple: the codes are drafted without recognition of the pluralistic character of mediation practice today. They effectively cast all mediators in a single mold, whereas in practice the mediators being addressed are not practicing a single monolithic process called mediation. They are practicing two significantly different processes called facilitative mediation and transformative mediation. A short summary of these two models will establish that they are indeed different and distinct in both aim and in method.

A. The Facilitative (Protective/Directive) Approach

In the facilitative approach, mediation is seen as a process aimed at reaching fair and creative resolutions of specific problems faced by parties in conflict. To achieve that goal, the mediator leads the parties through a sequence of stages: opening the session, setting ground rules, gathering information, defining issues, exploring options, generating movement by forceful persuasion, and achieving agreement. While the description of stages in the literature differs from text to text, the commonalities are very clear. What is also clear is the principle that the mediator controls and directs the process at every stage and that effective mediation requires the exercise of such mediator control to keep the process moving toward agreement and to protect against unfairness. From this fundamental principle of mediator control of the process, specific mediator practices follow, many of which involve limiting or overruling party self-determination in order to ensure a fair or just outcome.

Some of the practices recommended and documented in mediation literature include encouraging or steering the parties, especially through probing and pointed questions, to consider the fairness/justice dimensions of issues being discussed or solutions being proposed; advising parties who lack relevant information, regarding legal rights or otherwise, to obtain that information before reaching any agreement (and even providing them with information within the mediator’s knowledge); openly discussing the importance of (and asking parties to commit to) achieving just outcomes, in mediators’ opening statements on the aims of the process; and directly suggesting or supporting specific proposals aimed at creating a fair outcome. In general, it is a common view that “[w]hen disparities in power or knowledge disable a weaker party from effective bargaining the mediator must intervene to avoid a patently unfair agreement . . . .” To do so, many recognized mediation experts recommend that the mediator affirmatively engage in “power-balancing”—a practice directly aimed at “minimizing the negative effects of unequal power.”

While there are many other practices used by facilitative mediators aimed at moving the parties toward agreement on the issues that separate them, the methods mentioned here illustrate the primacy placed on the mediator’s role in protecting against unfairness in the process or outcome. All these practices stem from the view that the facilitative mediator is expected to monitor for and ensure that mediated agreements meet standards of substantive fairness, even if this involves overriding or limiting party self-determination.

B. The Transformative (Supportive/Nondirective) Approach

By contrast, the most fundamental principle of the transformative approach is that the mediator’s job is “to support and never supplant party deliberation and decision-making,” on every matter whether regarding process or outcome. Thus, mediators following this approach do not control or direct the process, do not use interventions that intentionally steer the discussion, and do not substitute their judgment for the parties’ on any matter of process, substance, or communication. In short, the process is not mediator-driven, but party-driven. What mediators do, instead of directing the process themselves, is to support the parties’ own process of presenting their views, thinking about what is being said, and making their own decisions on how to understand the situation, their options, and each other—and ultimately on what, if anything, they want to do about all of these things.

Thus the essential work of the transformative mediator is to support the parties’ choices, rather than to direct them in any way, and to do so without judging the fairness or justice of the process or outcome the parties choose. This means becoming a participant in, but not the controller of, the conversation. The mediator’s role is supportive but non-directive participation. The mediator’s job is to support party decisionmaking but never supplant it, whether to ensure fairness or for any other reason. Specific practices flow from these principles, which respect and facilitate party self-determination even if doing so may allow risks of unfairness in the process or outcome.

???????????First of all, mediators in this model let go of control of the session and its outcome, rather than holding onto it firmly. From the very opening of the session, parties can interrupt each other (and the mediator), change topics, return to subjects discussed earlier, and so forth. The mediator supports this freedom of choice, and refrains from “organizing” the discussion and thereby exercising influence over the process or outcome. Meanwhile, the mediator listens attentively but “without an agenda”—i.e., without thinking about how to “use” what is being said, for example, to plan toward a solution or to “balance power.”

???????????At the same time, the mediator uses a variety of methods to “amplify” the parties’ exchange. Such “amplification” places parties in control of their own discourse, rather than controlling it in any way. For example, mediators “reflect” party’s narrative comments without changing or filtering their content or tone. Building on the attentive listening s/he did, the mediator “mirrors” each party comment back, staying close to the party’s actual language and being careful not to filter or soften what is said. This kind of response allows the speaking party to hear and consider her own thoughts, and thus to define more deliberately for herself what she wants to say. Mediators also offer verbal “outlines” of segments of the conversation, listing but not editing or shaping the topics the parties have mentioned and the differences they expressed on each topic, again in whatever terms the parties choose to use. Moreover, in both reflecting and summarizing, mediators embrace rather than suppress the “hot” parts of the conversation. Rather than limiting or reframing negative and emotional expression, mediators allow it and then include the negative and the emotional in their reflections and summaries. All these practices allow and help parties to become more effective advocates for themselves, expressing their views to each other clearly and forcefully, without the mediator controlling or “power-balancing” their exchange.

?Finally, when parties make choices—about what to say, or when and how to say it, or what options to consider or reject—the mediator does not question them in order to influence what is and is not chosen. Instead, she uses questions only to “check-in” when parties show signs of hesitation or uncertainty about some aspect of the discussion. The aim of such questions is, as with the other methods mentioned here, to increase the parties’ opportunity for self-determination and choice—but not to monitor or shape the choices being made, even in order to prevent what might be seen as injustice.

C. Different Models, Different Aims, Different Skills—Different Ethics?

It should be clear from the above comparison of methods that the practices of facilitative and transformative mediation are very different. The difference is understandable, considering the very different conceptions the two models hold of the aim of mediation and the role of the mediator in the process. As discussed above, professional ethics codes begin from the conception of the professional’s role in relation to the client(s).?In mediation, the mediator’s role is . . . . This sentence cannot be completed easily because in mediation, given the pluralistic nature of practice as described above, the description of the mediator’s role is not singular. Rather, the mediator’s role can be defined in one or the other of two different ways: In the facilitative model, the mediator’s role is “problem-solver” and guarantor of fairness, guiding the parties to a resolution that meets the needs and interests of both/all parties and avoids injustice to anyone. In the transformative model the mediator’s role is “conversation supporter,” supporter of the parties’ communication and decisionmaking, as they explore issues and options for resolution whose justice they alone judge and define. These two roles point down two different paths, as the above discussion of the key practices of each model illustrates: The facilitative role points and leads the mediator into managing communication, solving problems and guarding against unfairness, all of which include many practices that limit party self-determination. The transformative role points and leads the mediator into following and amplifying the parties’ conversation, using non-directive but supportive practices that enhance but never supplant the parties’ own choices, even if those choices lead to what might seem to others like unjust outcomes.

This difference in role conception and practices has ramifications for the adoption of codes of ethics to guide and regulate the conduct of mediators, and the foundational differences should be and are reflected in such codes. So the codes that reflect these differences will offer very different guidance to mediators.?How can that conflict be reconciled, between different views of the mediator’s role that point in different directions on questions of ethical practice??

. . . The best approach is to recognize that mediation practice today is pluralistic, and therefore ethics standards should also be pluralistic. That is, there are distinct and different models of practice being used by mediators today—the most common of which are facilitative and transformative. Each of these models prioritizes a different value—reaching good solutions that avoid unfairness or supporting party self-determination. The role of the mediator, as discussed earlier, is different in each model. Therefore, the ethical obligations that flow from this role should be recognized as being different in each model. No one single set of ethical standards is feasible or appropriate for a diverse and pluralistic profession. Therefore, different ethical standards should exist for each of the distinct models of practice, allowing mediators of each approach to practice, but also holding mediators of each approach to practice ethically within their model.

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? Delivering on Mediation’s Different Promises.

???????????In a general sense, ethical practice means delivering on the promises that the professional makes to his/her client. The contract between mediator and client, whether explicit or implied by the role the mediator offers to play, defines what the client has a right to expect of the mediator. Ethical standards try to ensure that the mediator fulfills those expectations, delivers on those promises. However, the promises made are different depending on whether the mediator follows the facilitative or the transformative approach to practice. It follows that, in order to ensure that mediators’ promises are fulfilled in practice, ethical standards should also be different for mediators following the two different approaches. Therefore, rather than adopting a single set of ethical standards, each jurisdiction should have in place two sets of ethical standards, one applicable to facilitative mediators and one applicable to transformative mediators. This framework would permit mediators of both approaches to practice within the jurisdiction, while providing for each approach a clear and coherent set of guiding and controlling standards of practice. All mediators would be asked to declare to their clients, either as a general statement about their practice or at the beginning of a case, which approach to practice they follow. Their service to their clients will then be subject to those standards, and deviation from the chosen standards would be grounds for complaint.

Establishing a good framework for mediator ethics has proven a tough “problem” for the field to solve. Adopting unitary codes based on either core value—protection or self-determination—makes it difficult and risky for mediators whose practice model is based on the other core value. Adopting combination codes confronts mediators with the insoluble problem of satisfying both values even when they are in conflict, which will often be the case. Nor does it seem wise to regard all ethics standards as merely suggestions and thus delegate to every individual mediator the task of resolving ethical dilemmas according to their personal sense of right and wrong, or their ethical intuition—a “solution” that would mean no consistent ethical regulation at all.

???????????By contrast to all of these unsatisfactory solutions, adopting a pluralistic framework for mediator ethics is both a feasible and a desirable approach. It would avoid the exclusion of practitioners of either model of mediation. It would offer practitioners of each model clear and coherent guidance on how to resolve the major dilemmas they are likely to face in practice—and especially the dilemma they will find most challenging whenever it arises, the choice between protecting against injustice or supporting self-determination. An ethical system that does not provide clear guidance, especially on that dilemma, does an injustice to both mediators and their clients, and the system in place until now has allowed that situation to prevail. With agreement now widespread on the options for mediator practice and the values underlying those options, it should be possible for the field to stand up and meet the challenge of establishing clear, consistent ethics rules by adopting a pluralistic approach to mediation ethics in every jurisdiction where mediation is practiced.

???????????Ultimately, this is the test of a successful ethics regime: It ensures that clients receive the service that they believe they want and need, and that the mediator has promised to provide. A pluralistic ethics system is the best guarantee that individual mediators will deliver on their promises to specific clients. At a larger level, it is also the best guarantee that the mediation field as a whole will deliver on the different promises it has made to parties in conflict by permitting and supporting, but also by holding accountable, mediators following diverse models of practice based on different underlying values. Both of those models have value, and both respond to different needs and preferences of parties in conflict. A diverse world of mediation practice is needed to fulfill the different promises the field holds for disputing parties and for society as a whole. For that diversity to exist and flourish, ethical standards must be clear, coherent—and pluralistic. The argument of this Article is that such a pluralistic approach to mediation ethics is within the field’s grasp, and that it should be discussed and adopted, the sooner the better for mediators, parties, the mediation field, and society as a whole.

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