Mediation Ethics Neutrality Activisim Thumb on the Scale

Mediation Ethics: Neutrality, Activisim & Thumb on the Scale Or, The Unbearable Lightness of Non-Doing NYSBA DRS Ethics Committee Dorsey & Whitney September 12, 2017 By: Simeon H. Baum, Esq. Resolve Mediation Services, Inc. (www. mediators. com) Copyright Simeon H. Baum 2017; Resolve Mediation Services, Inc. 1211 Avenue of the Americas, 40 th floor, New York, NY 10036 (212)355 -6527; fax (212) 753 -0396; http: //www. mediators. com; email: Simeon. HB@dispute. Resolve. com

Thinking About Ethics; Ethical Thinking

Community Dialogue & The Box Academic Dialogue Acknowledges And Engages Community; Respects Work, Dialogue and Reflection of others. Group Think; Dulled Sense; Gone the Still Small Voice

AAA/ABA/ACR Standards of Conduct l I. SELF-DETERMINATION l II. IMPARTIALITY l III. CONFLICTS OF INTEREST l IV. COMPETENCE l V. CONFIDENTIALITY l VI. QUALITY OF THE PROCESS AAA/ABA/SPIDR(ACR) MODEL STANDARDS OF CONDUCT FOR MEDIATORS (1994, 2005)

Who Are Our Authorities?

What is our Method?

Defining Ethics l Not Easy! l Moral philosophy: a branch of philosophy that involves systematizing, defending and recommending concepts of right and wrong conduct.

Quite a Range l Philosophical ethics investigates what is the best way for humans to live, and what kinds of actions are right or wrong in particular circumstances. Meta-ethics (epistemology, meaning, ontics) l Normative ethics (actions – good? bad? ) l Applied Ethics - draws upon ethical theory in order to ask what a person is obligated to do in some very specific situation, or within some particular domain of action l

Normative Ethics l l l l Virtue ethics Stoicism Hedonism Cyrenaic hedonism Epicureanism State consequentialism Consequentialism Utilitarianism Deontology Contemporary virtue ethics Pragmatic ethics Role ethics Anarchist ethics Postmodern ethics

What Are Mediators Trying to Do?

What are We Cultivating? l Talk & Listening l Understanding & Empathy l Insight & Empowerment l Creativity l Realistic Assessment l Decision Making l Truth & Acceptance

Trust

Trust Calls for: Neutrality

MEDIATION TIPS FROM THE Tao te Ching Quotations from Mitchell, S. (trans. ) (1991). Tao te Ching. New York, Harper & Row.

Learning from Water l Not Claiming Credit (2) l Not Possessing (10) l Not Relying on Own Ability (2) l Tranquility (57) l Simplicity (48, 57) l Softness (38) l Stitch in Time (63) l Fractionating (64) l Spontaneous Transformation (37)

Wu Wei (Non-doing) l Stepping Out of the Way l Letting Events take their course, with patience, confidence, open, accepting attention l Not Directing or Controlling Events, rather Midwiving Constructive Movement of Larger Forces at Play l Holistic l Patience l Dancing to the Universal Tune

Back to Earth l Holding One’s Tongue l Letting Another Struggle with a Problem & Find Solution l Silence Permitting Truthful Expression or Insight l Tact l Forces in Negotiation Drive Towards Resolution: Risk, Cost, Time, Relations

THINK CREATIVELY & INCLUSIVELY We join spokes together in a wheel, But it is the center hole That makes the wagon move. We shape clay into a pot, But it is the emptiness inside That holds whatever we want. We hammer wood for a house, But it is the inner space That makes it livable. We work with being, But non-being is what we use. Quotations from Mitchell, S. (trans. ) (1991). Tao te Ching. New York, Harper & Row.

TIPS FROM THE ANCIENTS ON MEDIATOR QUALITIES The ancient Masters were profound and subtle. Their wisdom was unfathomable. There is no way to describe it; all we can describe is their appearance. They were careful as someone crossing an iced-over stream. Alert as a warrior in enemy territory. Courteous as a guest. Fluid as melting ice. Shapeable as a block of wood. Receptive as a valley. Clear as a glass of water. Do you have the patience to wait till your mud settles and the water is clear? Can you remain unmoving till the right action arises by itself? The Master doesn’t seek fulfillment. Not seeking, not expecting, she is present, and can welcome all things.

KEEP IT THE PARTIES’ PROCESS When the Master governs, the people Are hardly aware that he exists. Next best is a leader who is loved. Next, one who is feared. The worst is one who is despised. If you don’t trust the people, You make them untrustworthy. The Master doesn’t talk, he acts. When his work is done, The people say, “Amazing: We did it, all by ourselves!” Quotations from Mitchell, S. (trans. ) (1991). Tao te Ching. New York, Harper & Row.

Communicate Trust & Good Will To Build Trust and Good Will The Master has no mind of her own. She works with the mind of the people. She is good to people who are good. She is also good to people who aren’t good. This is true goodness. She trusts people who are trustworthy. She also trusts people who aren’t trustworthy. This is true trust. The Master’s mind is like space. People don’t understand her They look to her and wait. She treats them like her own children. Quotations from Mitchell, S. (trans. ) (1991). Tao te Ching. New York, Harper & Row.

PLACE THE PARTIES FIRST THEIR NEEDS, THEIR PERCEPTIONS, THEIR EVALUATIONS, THEIR OPTIONS, THEIR SETTLEMENT, THEIR VOICE All streams flow to the sea Because it is lower than they are. Humility gives it its power. If you want to govern the people, You must place yourself below them. If you want to lead the people, You must learn to follow them. The Master is above the people, And no one feels oppressed. She goes ahead of the people, And no one feels manipulated. The whole world is grateful to her. Because she competes with no one, No one can compete with her. Quotations from Mitchell, S. (trans. ) (1991). Tao te Ching. New York, Harper & Row.

BE FLEXIBLE Men are born soft and supple; Dead, they are stiff and hard. Plants are born tender and pliant; Dead, they are brittle and dry. Thus whoever is stiff and inflexible Is a disciple of death. Whoever is soft and yielding Is a disciple of life. The hard and stiff will be broken. The soft and supple will prevail. Quotations from Mitchell, S. (trans. ) (1991). Tao te Ching. New York, Harper & Row.

GIVE THE PARTIES TIME TO VENT, EXPRESS THEMSELVES, LAY OUT THEIR POSITIONS, LAY OUT THEIR INTERESTS If you want to shrink something, You must first allow it to expand. If you want to get rid of something, You must first allow it to flourish. If you want to take something, You must first allow it to be given. This is called the subtle perception of the way things are. The soft overcomes the hard. The slow overcomes the fast. Let your workings remain a mystery. Just show people the results. Quotations from Mitchell, S. (trans. ) (1991). Tao te Ching. New York, Harper & Row.

DO NOT RUSH (TO EVALUATION OR SETTLEMENT) Prevent trouble before it arises. Put things in order before they exist. The giant pine tree Grows from a tiny sprout. The journey of a thousand miles Starts from beneath your feet. Rushing into action, you fail. Trying to grasp things, you lose them. Forcing a project to completion, You ruin what was almost ripe. Therefore the Master takes action By letting things take their course. He remains as calm At the end as at the beginning. He has nothing, Thus has nothing to lose. Quotations from Mitchell, S. (trans. ) (1991). Tao te Ching. New York, Harper & Row.

KEEP AN OPEN MIND (CAUTION ON EVALUATION) If you close your mind in judgments And traffic with desires, Your heart will be troubled. If you keep your mind from judging And aren’t led by the senses, Your heart will find peace. Seeing into darkness is clarity. Knowing how to yield is strength. Quotations from Mitchell, S. (trans. ) (1991). Tao te Ching. New York, Harper & Row.

LISTEN RECEPTIVELY Those who know don’t talk. Those who talk don’t know. Close your mouth, Block off your senses, Blunt your sharpness, Untie your knots, Soften your glare, Settle your dust. Quotations from Mitchell, S. (trans. ) (1991). Tao te Ching. New York, Harper & Row.

What Triggers The Ethical Dilemma? ACT, DON’T ACT

TODAY’S CHALLENGE:

TODAY’S CHALLENGE:

TODAY’S CHALLENGE: LEVERAGE

TODAY’S CHALLENGE: OBDURATE NASTINESS

Make Peace or Tilt at Windmills?

Back to Applied Ethics & This ADR Community: Our Ethics Follow Our Activities l I. SELF-DETERMINATION l II. IMPARTIALITY l III. CONFLICTS OF INTEREST l IV. COMPETENCE l V. CONFIDENTIALITY l VI. QUALITY OF THE PROCESS AAA/ABA/SPIDR(ACR) MODEL STANDARDS OF CONDUCT FOR MEDIATORS (1994, 2005)

What do the Standards of Conduct Say on Neutrality? STANDARD II: IMPARTIALITY A. A mediator shall decline a mediation if the mediator cannot conduct it in an impartial manner. Impartiality means freedom from favoritism, bias or prejudice. B. A mediator shall conduct a mediation in an impartial manner and avoid conduct that gives the appearance of partiality. NB: BIAS; NEUTRALITY; SEE ALSO: STD III: CONFLICT OF INTEREST

STANDARD II: IMPARTIALITY 1. A mediator should not act with partiality or prejudice based on any participant’s personal characteristics, background, values and beliefs, or performance at a mediation, or any other reason. C. If at any time a mediator is unable to conduct a mediation in an impartial manner, the mediator shall withdraw.

STANDARD III: CONFLICTS OF INTEREST A. A mediator shall avoid a conflict of interest or the appearance of a conflict of interest during and after a mediation. A conflict of interest can arise from involvement by a mediator with the subject matter of the dispute or from any relationship between a mediator and any mediation participant, whether past or present, personal or professional, that reasonably raises a question of a mediator’s impartiality.

STANDARD III: CONFLICTS OF INTEREST l. B. A mediator shall make a reasonable inquiry to determine whethere any facts that a reasonable individual would consider likely to create a potential or actual conflict of interest for a mediator. A mediator’s actions necessary to accomplish a reasonable inquiry into potential conflicts of interest may vary based on practice context.

STANDARD III: CONFLICTS OF INTEREST l. C. A mediator shall disclose, as soon as practicable, all actual and potential conflicts of interest that are reasonably known to the mediator and could reasonably be seen as raising a question about the mediator’s impartiality. After disclosure, if all parties agree, the mediator may proceed with the mediation. Parties OK with it? NO PROBLEM…

STANDARD III: CONFLICTS OF INTEREST l. D. If a mediator learns any fact after accepting a mediation that raises a question with respect to that mediator’s service creating a potential or actual conflict of interest, the mediator shall disclose it as quickly as practicable. After disclosure, if all parties agree, the mediator may proceed with the mediation. Parties OK with it? NO PROBLEM…

STANDARD III: CONFLICTS OF INTEREST l. E. If a mediator’s conflict of interest might reasonably be viewed as undermining the integrity of the mediation, a mediator shall withdraw from or decline to proceed with the mediation regardless of the expressed desire or agreement of the parties to the contrary. Who is source of problem? “A mediator’s conflict…. ” What is protected? “Integrity of the Mediation…. ”

Is there an Objective Standard for Integrity of Mediation, Not Dependent on Mediator’s Conflict?

STANDARD VI: QUALITY OF THE PROCESS A. A mediator shall conduct a mediation in accordance with these Standards and in a manner that promotes diligence, timeliness, safety, presence of the appropriate participants, party participation, procedural fairness, party competency and mutual respect among all participants. Q: WHAT IS THIS NOTION OF QUALITY?

STANDARD VI: QUALITY OF THE PROCESS 4. A mediator should promote honesty and candor between and among all participants, and a mediator shall not knowingly misrepresent any material fact or circumstance in the course of a mediation.

STANDARD VI: QUALITY OF THE PROCESS 5. The role of a mediator differs substantially from other professional roles. Mixing the role of a mediator and the role of another profession is problematic and thus, a mediator should distinguish between the roles. A mediator may provide information that the mediator is qualified by training or experience to provide, only if the mediator can do so consistent with these Standards.

STANDARD VI: QUALITY OF THE PROCESS 6. A mediator shall not conduct a dispute resolution procedure other than mediation but label it mediation in an effort to gain the protection of rules, statutes, or other governing authorities pertaining to mediation.

STANDARD VI: QUALITY OF THE PROCESS 7. A mediator may recommend, when appropriate, that parties consider resolving their dispute through arbitration, counseling, neutral evaluation or other processes.

STANDARD VI: QUALITY OF THE PROCESS 8. A mediator shall not undertake an additional dispute resolution role in the same matter without the consent of the parties. Before providing such service, a mediator shall inform the parties of the implications of the change in process and obtain their consent to the change. A mediator who undertakes such role assumes different duties and responsibilities that may be governed by other standards.

STANDARD I : SELF DETERMINATION A. A mediator shall conduct a mediation based on the principle of party selfdetermination. Self-determination is the act of coming to a voluntary, uncoerced decision in which each party makes free and informed choices as to process and outcome. Parties may exercise self-determination at any stage of a mediation, including mediator selection, process design, participation in or withdrawal from the process, and outcomes.

STANDARD I : SELF DETERMINATION 1. Although party self-determination for process design is a fundamental principle of mediation practice, a mediator may need to balance such party self-determination with a mediator’s duty to conduct a quality process in accordance with these Standards.

STANDARD I : SELF DETERMINATION B. A mediator shall not undermine party self-determination by any party for reasons such as higher settlement rates, egos, increased fees, or outside pressures from court personnel, program administrators, provider organizations, the media or others.

STANDARD IV: COMPETENCE A. A mediator shall mediate only when the mediator has the necessary competence to satisfy the reasonable expectations of the parties. 1. Any person may be selected as a mediator, provided that the parties are satisfied with the mediator’s competence and qualifications. Training, experience in mediation, skills, cultural understandings and other qualities are often necessary for mediator competence. A person who offers to serve as a mediator creates the expectation that the person is competent to mediate effectively.

STANDARD IX: ADVANCEMENT OF MEDIATION PRACTICE A. A mediator should act in a manner that advances the practice of mediation…

Confidentiality

STANDARD V. CONFIDENTIALITY l A. A mediator shall maintain the confidentiality of all information obtained by the mediator in mediation, unless otherwise agreed to by the parties or required by applicable law. l 1. If the parties to a mediation agree that the mediator may disclose information obtained during the mediation, the mediator may do so.

The Cone of Silence

Technique of No Technique l Character of the Mediator – Communicate & Engender Trust l Presence l Open Awareness l Expressed in Posture, Bearing, Tone, Eye Contact, Omission l Sensitive Awareness l Deep Listening l Flexibility l Connectedness, Relatedness

Unspoken Message l Decent, capable people of good will l In this world together l Greater force in and embracing us that will work it out if we persist and let it happen

A Lesson from Tai Chi Push Hands l Continuous Relatedness l Harmonious Whole l 4 ounces of pressure l Continuing Adjustment l Receptivity l Listening for Strength l Not Rushing to Caucus l Working Through the Knotty Problem