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An Ethical Evaluation Process for Mediators: A Preliminary Exploration of Factors Which Impact Ethical Decision-Making

Bobette Wolski is an experienced litigation lawyer and mediator.

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.

(2017) 35(1) Law in Context p64

   
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