How Can a Mediator be Both Impartial and Fair: Why Ethical Standards of Conduct Create Chaos for Mediators

摘要

Currently, a mediator is faced with a dilemma. All state ethical standards of conduct (“Standards”), whether promulgated by a governmental entity or professional organization, require mediator impartiality. Yet many Standards also require a mediator to attain a fair result, achieve other concepts of fairness, balance power struggles and promote informed decisions. Is it possible for a mediator to conform to all of these qualities?This article provides extensive research and analysis regarding Standards that focus on mediator impartiality and fairness. The research establishes that Standards create chaos for the practicing mediator to the extent they include vague and internally inconsistent provisions.To avert the chaos, therefore, we must begin a dialogue. Although this author is not ready to commit to a single course of action, various recommendations are posed to help start the conversation, while at the same time recognizing the fluid nature of mediation. The recommendations include:1. Take no action, otherwise known as the no-action alternative. This alternative is limited to those states that have not yet developed Standards.2. Revise ethical standards of conduct and definitions of mediation to delete requirements of mediator impartiality. By simplifying the definition of mediation – “a process of using a third party to assist disputants to reach a desired goal” – this alternative deletes requirements of mediator impartiality and aligns with the current trend toward achieving some aspect of fairness.3. Modify existing Standards to clarify otherwise vague provisions, enhance corresponding commentary, and where necessary, create a hierarchy of ethical concerns within a single set of Standards.