THE ETHICAL BASIS OF CONFLICT RESOLUTION

By Kevin Gibson

Department of Philosophy
University of Colorado, Boulder

Conflict Resolution Consortium
Campus Box 327
University of Colorado
Boulder, Colorado  80309
(303) 492-1635
(303) 492-6427

March, 1989

Working Paper #89-3.

This paper was written with a small grant from the Conflict Resolution 
Consortium, University of Colorado.  Funding for the Consortium and its 
Small Grants Program was provided by the William and Flora Hewlett 
Foundation.

The statements and ideas presented in this paper are those of the 
author and do not necessarily represent the views of the Conflict 
Resolution Consortium, the University of Colorado, or the William and 
Flora Hewlett Foundation.

CONFLICT RESOLUTION CONSORTIUM

Funded by the William and Flora Hewlett Foundation and the University 
of Colorado, the Conflict Resolution Consortium is a
coordinated program of research, education and application on three
of the University's four campuses.  The program unites researchers, educators, 
and practitioners from many fields for the purposes of theory-building, 
testing, and application in the field of conflict resolution.  Current 
focus areas include international conflict; environmental and natural 
resource conflict; urban, rural, and inter-jurisdictional conflicts; and 
the evaluation of alternative dispute resolution mechanisms.

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Usually these papers are inpreliminary draft stage and are being 
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INTRODUCTION
 
     In the absence of licensing or governing professional bodies, 
attempts have been made by, for example, Christopher Moore to formulate 
an ethical code for mediators. (1986)  The Proceedings of the Eleventh 
Annual Conference of SPIDR was devoted to Ethical Issues in Dispute 
Resolution.  The results of these attempts has been to formulate some 
'rules of thumb' and some guidelines in mediation practice.  They are 
voluntarily subscribed to, and essentially guard against the potential 
grounds for a lawsuit.  However, there has been no theoretical backdrop 
for these guidelines other than general intuitions of right and wrong.  
This paper divides into three parts.  In the first I will sketch some 
major meta-ethical theories to show how we derive our sense of right and 
wrong, good and bad.  In the second, I will briefly illustrate how such 
theories give us a way to codify and defend our ethical intuitions.  
This theoretical underpinning also gives us a basis for reasoned argument 
over matters of ethical uncertainty in conflict resolution, such as 
fairness and confidentiality.  Thirdly, I will suggest a framework which 
we can use to develop a code of ethics.
 
WHY HAVE ETHICS?
 
     One way to approach the question of `why have ethics?' is to draw 
an analogy between language and ethics.  In language we all use grammar 
but we are seldom aware of it, and only formulate it when we reach a 
difficult question -- `he and me' or `he and I?'  Similarly in our behavior 
we all have ways of going about in the world. Rarely are we self-conscious 
about our acts and we fall back on ethical systems mostly when 
we face issues that are new or uncertain.  By looking at the way that 
mediators behave in practice and the way that they recommend others to 
act, we can begin to form a `grammar of behavior' for those engaged in 
dispute resolution.  In order to construct this grammar we need to 
distinguish various ways of thinking about how people decide what it is 
to be good or bad, right and wrong. 
 

META-ETHICS AND NORMATIVE ETHICS
 
     The role of meta-ethics in negotiation has been neglected.  Often 
when people talk about what is ethical they immediately talk about what 
they feel people should do and how we can persuade them to come round to 
our way of thinking.  However, this sort of discussion presumes certain 
conventions of what is right and wrong without looking at the theories 
behind these conventions.  This can be illustrated by Raiffa's findings 
in his Art and Science of Negotiation (1982).  Raiffa posed the
question to students: 'Should you be open and honest in the short run
because it is right to act that way, even though it might hurt you in the
long run?'  He notes to his distress that some have responded 'I think
that that behavior is unethical, but I would probably do the same.'
Raiffa himself feels that 
 
Normative ethical frameworks are not designed to yield definitive 
decision procedures, and we should not expect answers from these
philosophical teachings and reflections  (p.344)
 
but this seems to me to miss the point:  Normative ethics deals in what 
we ought to do in particular situations, but it is derivative from a 
meta-ethical theory.  Raiffa already has decided that what is `open and 
honest' is what is `right'.  He has loaded the question so that anyone 
who disagrees that the `open and honest' approach is automatically right 
brands themselves as being `unethical'.  As in any complex question 
('Have you stopped beating your wife?') Raiffa's question makes certain 
covert presuppositions; in this case the assumption of an ethical theory 
that equates openness and correct behavior.  However, a utilitarian 
might well argue that what is right stems from what is beneficial to the 
maximum number.  So it is entirely possible that what is right could be, 
for example, `discrete and reserved'.  Moreover, on utilitarian grounds, 
the way to find this out would be empirical -- i.e. by testing to see 
what approach maximizes benefits collectively.  Raiffa has to explain 
why in the absence of any overt meta-ethical theory he can claim to
know a priori what is 'right' about any particular course of action.  Once 
this is understood, the results of his ethical casework become less 
surprising, and rather than showing us that many people are 
'unethical' they show that people have different opinions about 
what is ethical. Thus recognizing the meta-ethical standpoint of
participants and commentators appears to be crucial in understanding the
dynamics of negotiation in general.
 

META-ETHICAL CONSIDERATIONS
 
     Laying out the main meta-ethical theories will give us a chance to 
see where tensions will arise in our ethical intuitions.  Meta-ethical 
theories are theories about ethics, that is to say that they are
codified formulations about the way that we should behave and the ways in 
which we define `right' and `wrong', `good' and `bad'.  These formulations 
are not necessarily exclusive or exhaustive; however they stress 
different criteria for selecting specific courses of action.  Here I 
will sketch briefly the three main meta-ethical schools.
 
     The Utilitarian formulation considers the consequences of an
action as paramount in ethical consideration.  The rightness and wrongness of 
an act is gauged by its good or evil effects rather than the mere act 
itself.  Generally this sort of thesis holds that a right act is one 
where we are able to maximize the good, or minimize the bad, and that 
the calculus will tell us what is our duty in any given case.  A popular 
version of the theory tells us that we should do whatever creates 'the 
greatest happiness for the greatest number'.  The promise of utilitarianism 
is that it may be able to provide us with an empirical and objective 
way to settle ethical disputes.  
 
     However, the theory is not without its difficulties.  What, for 
instance, is the `good' that is being maximized?  John Stuart Mill 
equated the good with happiness or pleasure, yet we can think of times 
when someone has been made happy or pleased where we would not necessarily 
say that it was a good act - the satisfaction of the sadist, or 
the telling of a `white lie' for instance.  Furthermore, it is difficult 
to compare the quantities and qualities of happiness - is one brief but 
intense moment equal to long periods of reasonable happiness?
 
 
     Modern versions of consequentialist theories have moved away from 
the belief that the good can be captured in terms of particular values 
such as pleasure or happiness, and instead have calculated maximum 
utility on the basis of what an individual would choose among available 
alternatives, i.e. the good is thought of that which, on aggregate, 
maximizes the satisfaction of personal preferences.  This gets away from 
the difficulty of formulating objective qualities which constitute the 
good for everyone, and allows subjective tastes and personal values to 
be taken into consideration.  The appeal of preference utilitarianism is 
that it gives an objective calculus which takes subjective opinions into 
account.
 
     In short, preference utilitarianism asks people to rank their 
preferences and deems the best result as that which can satisfy the 
greatest number of preferences for the greatest number.  However, there 
are still lingering difficulties with the theory.  If, for instance, 
someone's preferences are irrational, immoral, unjust or even perverse, 
it is not at all clear that it would be nevertheless good to satisfy  
them.
 
     Another difficulty is that the theory seems open to the possibility 
of oppressing the minority, since it relies on majority rule.  If, for 
example, the majority could be made happy by the over-riding the interests 
of one individual, then a utilitarian would consider that, on 
balance, the individual should be allowed to suffer.
 
     We can contrast meta-ethical theories that examine consequences 
with those that look at the intrinsic act itself as being moral or 
immoral irrespective of the consequences.  Deontologists believe that 
the value of actions lies in the motives rather than the consequences.  
Hence, we should keep promises and fulfill obligations simply because 
they are promises and obligations as opposed to looking at the possible 
consequences.  An act is right for the deontologist when it conforms to 
a rule of conduct that is dictated by some account of duty.  Philosophers 
in this tradition have attempted to come up with a coherent notion 
of duty; perhaps the best known formulation is the 'Golden Rule'-- 'do 
unto others as you would have them do unto you'.   Some other accounts 
rely on external commands, sometimes divine, which tell us what to do; 
others believe that we have some sort of intuitive faculty which gives 
us insight as to what we ought to do on any given occasion.  Still 
others believe that the ultimate principle of duty is derived from some 
sort of tacit social contract.
 
     With any sort of duty-based theory it is hard to make a convincing 
and rational argument for the principle posited.  For example, intuitions 
may be strong and self-evident to the person who experiences them, 
but not at all obvious to anyone else.  
 
     A key element of traditional formulations of deontology has been an 
emphasis on personal autonomy; because people are not acting because of 
objective or external dictates, then their actions are internally driven.  
Hence, people are responsible for their own decisions and actions 
in a way that the utilitarian is not, since the utilitarian could always 
point to the demands of the calculus.  A corollary of the deontological 
theory is that we should consider persons as individuals capable of 
independent decisions and worthy of respect as persons. To paraphrase 
Immanuel Kant, the theory suggests that we should treat people as ends 
in themselves, rather than just as means to an end.
 
     A recent approach to ethics has been to accept that we should look 
at acts and motives but to reject that we can find out what is good or 
right by examining duties, since duties are derivative of various kinds 
of rights.  It is because we have rights that we generate duties; moreover 
we can have rights without demanding to have them fulfilled, whereas 
duties imply that we need to act.  Thus, for example, I may have a 
right to fly a kite in the city park but need never exercise that right, 
but if I have a duty to clear my sidewalk of snow it implies that I have 
to do so in the case that it snows.  Thus Mackie, (1977) for one, suggests 
that rights precede and undergird duties. 
 
     Rights-based theories of ethics identify different types of rights, 
derived from Hohenfeld's legal analysis:  One type are privileges. These 
might be seen as an absence of duty to refrain from doing something, or 
common liberties.  For example, I may, if I so choose, speak publicly on 
any topic, or choose to relocate.  Another sort of right is a claim 
right which may involve an obligation to act; so that if you owe me 
money I have a claim on you to repay me.  A third type is an immunity 
right, which prevents others from taking every sort of liberty against 
me; you may not, for instance, come into my house and walk off with my 
goods because you choose to do so.  Lastly we have Power rights or 
authority over the lack of immunity of others.  My power can be seen as 
someone elses liability.  Hence, there are certain positions of authority 
which endow their holders with specific rights; teachers, police, and 
doctors can treat us in ways which we would not otherwise tolerate.
 
     Another meta-ethical approach concentrates not on the actions or 
principles that guide moral actions so much as on the character of the 
agents themselves.  Instead of looking at what we do this sort of
theory looks at who we are.  Acting from a sense of duty or out of utility may 
be done grudgingly or with resentment; a child told to thank his grandparents 
for a gift may do so involuntarily or without much sincerity, 
and although the he performs the `right' act, we would probably not feel 
that his act was entirely `good'.  This implies that duty, rights or 
utility do not tell the full story -- we want to include a component of 
moral censure or praise based on the moral worth of the actor.  Virtue 
ethics, then, looks at whether the person is praiseworthy or blameworthy, 
admirable or reprehensible, or virtuous or vicious.  It does not 
suggest what ought to be done on any particular occasion but rather what 
sort of dispositions and habits we should inculcate in order to benefit 
mankind.  This kind of theory suggests that we should look to the example 
of great men and women, and follow our saints and heroes.
 
     Again, we can see that although one person may adopt Virtue Ethics 
as an over-arching guide, it may not be systematic or rationally persuasive.  
Different people may adopt different heroes, or choose various 
virtues.  They may rank virtues differently.  While it may be effective 
within a homogeneous community, Virtue Ethics provides little guidance 
on new and different moral dilemmas or when values conflict over particular 
cases.
 
     Meta-ethical theories need not be exclusive; indeed we would be 
suspicious if they did not all condemn, say, slavery.  Nor do we have to 
adopt one at the cost of renouncing all others.  However, the differences 
in approach do reflect our differing intuitions and stresses in 
the way we judge moral acts.  Where they become most useful is in our 
'cool reflective hours' when we formulate our ethical principles and 
wonder about hypothetical situations.  Such theories give us purchase 
when we argue or rationalize certain behaviors.  For example, if we 
should think about whether a starving man should be punished for stealing 
food, meta-ethical theories will suggest different ways that we can 
argue the case; maybe in terms of whether a `golden rule' has been  
broached, or what would give the maximum happiness to the maximum number, 
or what a particular saint or hero would have done, or what rights 
the individual parties have in such circumstances.  Each approach will 
evoke and stress different aspects of the moral question and give different 
insights.  Without any meta-ethical theory, though, we are left 
only to gainsay each other's intuitions.
 

NEGOTIATIONS TO MEDIATION
 
     Negotiation, and mediation, occurs between people.  Because of this 
it will vary with the disposition and traits of the parties involved.  
In the case of mediation the neutral mediator still retains much power 
and can influence the psychological, procedural and substantive elements 
of a settlement.  Hence the ethical bias of the parties will be a significant 
consideration in shaping any outcome.  As we saw above in the 
analogy with language, individuals do not have to be able to explicitly 
articulate the grammar of their behavior; it is sufficient that they 
have some basis for it, whether learned, acquired or intuited.  Still, 
in a negotiation situation, their ethical beliefs will color both their 
perceptions and approach to bargaining.  Again, I am not suggesting that 
an individual will consistently stick to one theory exclusively, but 
rather that they will be fundamentally prone to one sort.  At times it 
will be worthwhile to explore what participants in a negotiation believe 
constitutes `the good' or `the right'.
 
     A deontologist, for example, will be interested in the inherent 
moral worth of an act or decision more than its consequences.  She may 
describe consequences as somewhat arbitrary and stress the autonomy of 
the decision-maker, the motives of the participants and the importance 
of binding principles.  It will be important for her to feel that she is 
being treated fairly; that is, treated in the same way that anyone in a 
similar position would be treated.
 
     Someone with a rights-based theory will consider what entitlements 
and liabilities they have, and what sorts of authority and immunities 
are appropriate in a given situation.  A mediator might hear stress 
being placed on, say, 'the rights of the custodial parent' or the redress 
to which the party is 'entitled'.
 
     In contrast, a utilitarian will be most concerned with outcomes and 
motives are considered as secondary.  Results will define what is good 
or right.  Moreover, results are quantifiable and testable, and hence 
there will be an emphasis on the measurable.  Individuals may have 
different perspectives on what sort of results are preferable and the 
type of outcome that they are looking for.  Those distinctions are less 
important here than the fact that the issues are framed in terms of  
consequences.  
 
     The upshot of people having differing ethical theories is that they 
will be looking for varying elements to satisfy them in a negotiation, 
or the same sorts of things couched in language that accords with their 
own ethical perspective.  One person may `get to yes' more quickly if he 
or she is informed that the settlement appears to offer the best possible 
outcome for all concerned, whereas another will settle if he or she 
feels fairly treated and allowed to make a personal decision.  
 
     In all cases a mediator needs to pay attention to the values that 
the parties express.  The difference here is that ethical values are 
fundamental values that underwrite all others.  In that sense, finding 
out the ethical values and exploring them with a negotiating party will 
allow the mediator to find out relatively quickly what sort of settlement 
will be acceptable.  Often, for instance, clients will claim that 
they are primarily interested in a 'fair' settlement to all parties; in 
such a case the mediator needs to explore what is meant by the word 
`fair' since it could carry very different meaning for each party -- one 
may mean establishing his or her rights whereas another believes that it 
is maximizing the number of everyone's satisfied preferences.
 
     Just as our approaches to ethics differ, so will mediators approaches 
to the process of mediation itself.  Moore is one of a few who 
have attempted a theoretical basis for the mediation process, and in 
doing so he has incorporated tacit ethical assumptions.  For example, 
one  of Moore's primary claims is that: 
 
Mediation must be dedicated to the principle that all 
disputants have a right to negotiate and to attempt to determine the 
outcomes of their own conflicts. (299)
 
On the face of it, this is a claim about rights; it is concerned with 
the entitlements of the parties -- the disputants not only should work 
out their own solutions but they have a right to do so.  We could
contrast this to some possible competing claim, say, that parties should 
mediate because mediation brings about the optimum results.  Like many 
ethical statements employed in negotiation, Moore asserts rather than 
argues his fundamental claim.  However, he does not say what sort of 
right this may be -- is it, for example, a basic human right along the 
lines of freedom of speech?, or alternatively is it a privileged right 
allowed to people who live in certain societies or even areas of a 
country?  Is it a general right that applies tout court or one which 
only applies to specific areas -- divorce, child custody, torts and so 
forth?  It is not entirely clear where the boundaries of this right 
fall; certainly I can try to mediate civil cases, but would the same 
claim to self determination apply to criminal cases?  
 
     Explicit integration of such a claim into a meta-ethical theory 
would be useful here, because without it we can only accept or deny our 
own perception of what Moore is saying.  And certainly since this is a  
fundamental premise it seems that if we deny it then we must also reject 
other parts of his theory of mediation.  Perhaps we should treat the 
freedom to determine the outcome of a conflict along the lines of the 
freedom to travel as we please -- a basic but not absolute right that may 
be restricted.  However if we are going to use the terminology then it 
seems necessary that we embody it in a wider ethical framework.  The 
same could be said, of course, if we chose to base mediation on a theory 
of the propriety of self-determination or efficiency of result.  It is 
apparent that is a double difficulty in looking at the ethics in mediation.  
At one level, very few mediators have attempted any sort of 
theoretical justification of the process in which they are engaged, and 
at another, when they do so their ethical assumptions are incorporated 
as tacit assumptions.
 
     A corollary of using vague abstract terms as if they were concrete 
and understood is that statements on the theory of mediation are subject 
to interpretation.
 
     Moore says typically that
 
The goal of negotiation and mediation is a settlement that 
is seen as fair and equitable by all parties. (303)
 
This claim suffers from the vagueness of the central terms:  What is 
intended by one person using the word `equitable' may not be understood 
uniformly.  An equitable settlement about the splitting of household 
goods could refer to the material distribution the articles themselves, 
or their monetary value, or on the basis of sentimental attachment, or 
future utility, or based on who purchased the articles, and so forth.  
Therefore it is hardly surprising that disputants will have various 
views when they attempt to settle the matter de novo.  The dissonance 
over the meaning of key terms in mediation is not purely semantic.  The 
differing usages of the terms reflect pluralistic ethical values.  By 
examining those values we can attempt to resolve some of the vagueness.  
 
     Essentially we are not looking for a system of conflict resolution 
that is fair or equitable in the abstract but one that is fair by the 
standards of the disputants themselves.  This means that any account of 
the basis of mediation like Moore's cannot be made without reference to 
the disputants own ethical values.
 
    Some of the key issues in mediation are discussed in isolation from 
ethical theories.  Here I will look at three issues: empowerment,
confidentiality and impartiality.  Again, the theories themselves will not 
provide an answer to these issues, but they will allow us to reframe 
the discussion in explicit terms.  The effect of this will be to allow 
debate over both the ethical assumptions and the argument of a particular 
position.  For instance, questions of how directive a mediator 
should be could be discussed in terms of the consequences of the act, or 
in terms of the rights of the parties involved.  At one level the debate 
is about the ethical stand -- utilitarianism, rights-based ethics and so 
forth.  I want to maintain that arguments about meta-ethics are distinct 
from the issues of normative ethics within a school; for once the framework 
of the debate is established then we can debate whether, say, being 
more directive brings about better consequences.  In other words, the 
question of whether one type of act brings about greater net utility is 
distinct from whether the act is moral irrespective of the consequences.
 
     Often in mediation there is a clear disparity in the levels of 
power that the disputants believe they each have; typically a husband 
and wife in a divorce mediation will have well established power
relationships which may or may not reflect the actual balance.  They may be 
unaware of their alternatives or unwilling to do anything they believe 
will hurt the other party.  The same sort of thing is true in other 
kinds of mediation; strong personalities or set patterns of behavior can 
affect the substance of the negotiation.  A mediator involved in such a 
situation may be tempted to coach the unempowered party or to tell them 
of their true power.  The open question is whether that sort of intervention 
is either acceptable or advisable.
 
     A utilitarian approach will gauge the empowerment issue in terms of 
the likely consequences of the act.  If the result of such an intervention 
turns out to be beneficial to all parties concerned then ipso 
facto it will have been justified.  The `internal' issues then will revolve 
around how to calculate the utilities of the disputants, e.g. Can we 
weigh the satisfaction of one preference by one party against that of 
another?  One way to do this might be to reduce the calculation to 
monetary terms -- 'how much would you pay for ...?' and then compare the 
various choices.  Another might be to work out some form of decision 
tree based on numerical choices.  Game theory works on this sort of 
principle.  Still, there are doubts about how to judge quality versus 
quantity on any utilitarian scheme.  If I have more of my less important 
interests satisfied, does this equal less of my more important ones?  
Moreover, the minority is at risk.  In a multi-party negotiation, the 
least well represented may well have to suffer unequally because
utilitarianism allows the most satisfaction for the majority.
 
     Empowerment may be easier to deal with for the utilitarian than 
confidentiality.  Let us use the example here of the unseen voyeur who 
spies on a young woman.  On the face of it, the utilitarian should 
approve of such things going on; the voyeur is made more happy and the 
woman is not distressed.  This might be the case if the calculus included 
only those two people.  However, at least one of our objections to 
the example is that if that sort of behavior was condoned, then there 
would be a general disutility brought about by the sense of threat and 
intrusion that people would feel.  Similarly, a case of coaching may 
just involve two individuals in an isolated incident.  Confidentiality 
on the other hand seems to be cardinal to the process of mediation, and 
breaking confidence might undermine the process altogether.  Therefore 
the utilitarian approach has to determine the scope of its analysis in 
order to come to a conclusion.  Nevertheless it does offer the best 
possibility of arriving at an empirically verifiable result.
 
     The same sorts of issues would be involved in examining mediator 
neutrality from a utilitarian standpoint.  Should we find that the net 
result of a mediator being less than neutral is sometimes beneficial 
then that is perforce how we ought to act.  Again we would have to 
consider the scope problem -- does this calculus apply only to the two 
parties or does it have some sort of general application? -- and question 
whether there is some workable way of weighing the factors involved.
 
     The deontologist in contrast is more concerned with the motives
and obligations in a dispute than the results.  Hence what is right will be 
framed in terms like 'Would I have others do this to me if I were in 
their place?' or 'Does the maxim of "help the helpless" apply here?'  In 
this framework the key issues concern fairness, autonomy and adherence 
to principle.  The difficulty that the deontologist has in articulating 
his or her position though is that it quickly becomes a regress since 
there is always a further question that can be asked about the principle 
chosen.  At some stage the deontologist is likely to offer no further 
justification for his or her position other than some intuition or 
dogma.  The voyeur mentioned above would be refrained from acting 
because it is not how the deontologist would want things to be if he or 
she were in the place of the young woman or perhaps because it compromises 
the victim's autonomy.  Seen in these terms, empowerment of one 
party may be justified on the grounds that they lack autonomy in their 
decision making or that there should be fairness in the negotiation 
process.  On questions of impartiality and neutrality there is a certain 
attraction to the deontologist's point of view.  It seems that we ought 
to look at these issues irrespective of their particular results; that 
is we should be neutral and impartial because they are good-inthemselves 
and we have a duty to behave that way.  The deontologist 
would suggest that to analyze these questions in terms of result is to 
mistake the issue at hand; mediator impartiality and confidentiality are 
like duties and promises.  We keep them not because of the utility of 
doing so but because we have a obligation to do so.
 
     Sometimes these principles clash however; aiding the autonomy of 
one party may detract from the autonomy of another. It may not be fair 
to coach one side without also coaching the other.  Aiding the disadvantaged 
as a mediator may be fair but it may not be impartial.  What we 
need from the deontologist is some account of the ranking of principles 
which will give us a guide to action in concrete cases.  
 
     A virtue theorist may frame the issues in terms of whether acting 
or refraining will allow them to be the sort of person they want to be - 
e.g. can they go to bed with a clear conscience after behaving in a 
certain way?  They may look to the example of leaders in the field or 
people they respect, and extrapolate into the situation at hand - 'what 
would Gandhi have done here?'  One difficulty with the approach is that 
it is unsystematic and sometimes irrational.  This means that argument 
can be difficult and unproductive.  For example, on the question of 
empowerment the virtue theorist may cite examples of international 
mediation where the mediator gave advice and coached parties as to  
acceptable forms of language to be used.  However, both the example that 
the virtue theorist uses and its application are vulnerable to
controversion. He may note that President Carter was a partisan mediator
in the Camp David accord but effective nonetheless.  We might agree or 
disagree with this analysis, but still reject that the example fits the 
case in question -- say, environmental mediation.
 
     Rights theorists would view the ethical questions as a competition 
between rights, believing that some have the power to trump others.  The 
voyeur's rights to the pursuit of happiness may be trumped by the young 
woman's right to privacy.  In this light, the ethical disagreements in 
mediation cash out to be the determination of what sorts of rights the 
parties have in a mediation, how they are manifested, and the manner in 
which they are to be ranked.  It is widely recognized that the right to 
confidentiality may be trumped by the right to safety of innocent parties, 
and hence mediators are willing to report cases of child abuse 
told to them in confidence.  The ranking process becomes muddier, 
though, when we try to balance the rights of two different individuals 
to influence each other without partisan intervention (like coaching).  
What sort of right it is, and how would it fit into a coherent system of 
rights is not readily apparent.  An associated problem is that of the 
demand for the neutrality of a mediator -- again, is this a right, or a 
privilege?  It is hard to say.  
 
     That is not to claim that because the various rights are hard to 
articulate clearly then we should abandon the project; instead we should 
recognize that if we choose to frame the issues in this way then it is 
incumbent on us to make our assumptions explicit and our assertions 
clear and precise.
 
 
DEVELOPING A FRAMEWORK
 
     At present the field of conflict resolution is unregulated and 
growing.  New applications are constantly being found for the process of 
mediation and more and more practitioners are entering the field.  This 
has two significant implications.  One is that the practice is changing, 
and we cannot rely on ad hoc and ungrounded adjustments to our code of 
behavior.  The lessons of the so-called `Baby M' case suggest that we 
should try to monitor and govern our own behavior prior to being overtaken 
by a crisis.  Prudence suggests that the profession should have 
some form of control, whether external or internal.  
 
     Secondly the consequences of immoral activity may be considerable, 
both in scope and effect.  The consequences to a couple engaged in 
voluntary divorce mediation may be serious should they be the victim of 
an unscrupulous mediator -- the mediation might be continued unnecessarily 
or the settlement might be unfair.  The effects are serious, but 
limited.  However, if mediation were to be made mandatory to all divorcing
couples, then the consequences of such behavior will be far more 
widespread.  Thus as mediation gains acceptance in more forums, then the 
possible harms of unethical behavior will be more widespread.
 
     We also need to establish what we want a code of ethics to reflect.   
On the one hand we could use it to establish our aspirations and hence 
exemplify the best behavior that we expect from those engaged in conflict 
resolution.  On the other, we can use a code of behavior to set 
minimum standards of acceptable behavior, and to set limits below which 
sanctions would be applied.  Like the code of ethics adopted by the bar, 
that of mediation should reflect both aims.  The explicit distinction of 
the two is nevertheless a useful working guide for those engaged in 
conflict resolution.
 
     Another reason to establish a code of ethics is to create a system 
that could deal with grievances, since they need to be gauged against 
some set standard.  In a litigious society we also need to protect 
ourselves against frivolous and nuisance lawsuits.  Having a code of 
ethics will enable courts to judge whether a given act violates general 
or specific norms governing the behavior of practitioners.  An ethical 
code would also provide measure of protection to clients, inexperienced 
third parties, and the public.
 
     In considering norms for mediation, it appears that they fall under 
three general headings.  First, the practice of mediation does not 
exclude its practitioners from any of the general norms of society.  
Everyone has the duty not to steal or murder, and so we can assume that 
such normal general prohibitions would be included in any code of ethics 
for mediators.
 
     Some professions demand that special reinforcement should be made 
to general norms; we all have the duty not to commit fraud, but accountants 
and book-keepers may be more tempted to err because of their expertise
and increased opportunity to do so.  Therefore it seems appropriate 
to include and emphasize values that may be particularly at risk or 
which relate specifically to the role of the professional.  Likely 
candidates for this kind of emphasis would be factors like the unnecessary 
extension of proceedings, the improper use of confidential information, 
giving ungrounded opinion, and so forth.
 
     There will also be a case for incorporating norms specific to the 
individual profession.  As each profession has specific rights, powers, 
privileges or duties, then there may be offenses which peculiarly derive 
from their abuse.  For example, exchanging grades for sexual favors 
would be an offense peculiar to professors, or making a false arrest 
could only occur where an officer of the law has the power to make an 
arrest.  While these offenses could be more generally categorized as, 
perhaps, blackmail or harassment, it seems prudent to especially monitor 
and regulate the unusual privileges afforded by a position.  
 
     The mediator often sees parties who are vulnerable and emotion 
and consequently open to suggestion and exploitation.  Further, mediators 
hold information in confidence, and consequently have the power of 
disclosure or leverage that the information affords.  Using Moore's 
model, the mediator has influence in the procedural, psychological and 
substantive elements of the mediation process, and therefore we need to 
identify the points at which this influence is no longer beneficial to 
the disputants and sanction against times when it would be harmful.
 
     This discussion suggests that the present state of debate over 
ethical issues in mediation is analogous to people disputing the correctness 
of language use without reference to a governing grammar.  What 
may be acceptable colloquially may not be acceptable in business letter 
format, and hence until we distinguish the type of language we are 
talking about we will be unable to sort out the issues within each 
arena.  Similarly, ethical issues are unlikely to be resolved unless we 
can make our background assumptions explicit. 
 
     This will allow the debate to go on at two levels; both in questioning 
the initial assumptions, and then by argument within the framework 
of those assumptions.  In any case, reference to the `meta-level' 
of ethics appears essential.
 
Copyright (C) March 1989 by Kevin Gibson


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