COLLABORATIVE FAIRNESS: MEDIATION’S ETHICAL LINCHPIN
The public’s use, understanding, and satisfaction with mediation can only be achieved if mediators embrace the highest ethical principles. Whether the parties involved in a mediation choose to resolves their dispute is secondary in importance to whether the mediator conducts the mediation in accordance to these ethical standards.” (Florida Supreme Court, Florida Rules for Certified & Court-Appointed Mediators, Part II Standards of Professional Conduct, Rule 10.200 Scope and Purpose, Effective October 1, 2014.)
Promulgated rules of ethical conduct require the mediator to check his personal and professional conflicts, prejudice and bias at the door. Those baseline rules create a professional obligation to exercise personal ethical fairness and to conduct the proceedings with such decorum as to ensure that all participants are ethically and collaboratively ‘on the same page’. For the mediator, this is a tall order about an amorphous concept, and, if the exercise is indeed to be collaborative, the mediator’s challenge is to impart and share that sense of ethical fairness among all participants.
Mediation is a dynamic conflict-driven process with collaboration its end game. In moving towards consensus, the mediator plays several roles including umpire, facilitator and influencer, among others. Their powers of perception and concentration may at times just require listening to differing views of what seems to be the ‘problem’. In each instance, the mediator must find transformative mitigants to move the conversation from individual positions of self-interest to a working environment of collaborative fairness.
What constitutes ‘fair’ is in the eye of the beholder. Our constitutional public justice system posits procedural and substantive fairness in terms of structural transparency, uniform operating assumptions and full disclosure. When circumstantial fairness is required to mitigate that rule-bound, precedential process, equity (that ‘Conscience of the Court’) provides malleable justice that is more appropriate to meet unique or exigent unique circumstances requiring an immediate response to prevent irreparable harm. A guiding principle in mediation (the so-called ‘private justice system’) is that all participants must have a ‘piece of the action’. The fairness in mediation is not just the creation of ‘a level playing field’. As a driving force, collaborative fairness means that each participant, the mediator, the parties and counsel, make an ethical and meaningful contribution to the process and its intended goal.
Oct-Dec 2015 issue
Assouline & Berlowe, P.A.