I. Introduction
“One of the key stressors mediators face in practice relates to trying to support the achievement of party self-determination, at the same time as fulfilling an ethic of mediator neutrality.”
The above quote illustrates one of the difficulties mediators face under the current mediator neutrality ethical paradigm. Often, mediators struggle to keep their preconceived opinions and biases out of the process in order to maintain their neutral third-party stance and support party self-determination. Mediation is a dispute resolution process that primarily focuses on maximising parties’ self-determination. However, a paradox exists under the existing mediator neutrality ethical paradigm. While mediators are not allowed to influence the content of decision-making in mediation, they must pay attention to the content of the settlement in order to ensure that the interests of all parties are represented. Under such circumstances, it is inevitable that mediators would be influenced by their own cognitive feelings and judgment. Consequentially, many have questioned whether it is even possible for a mediator to be neutral in any mediation process and uphold party self-determination at the same time. Neutrality as an ethical approach has also been criticised as being “unattainable in practice, unreal and unworkable”.
In light of the problematic discordance between achieving mediator impartiality and party self-determination, many have argued for an alternative ethical approach to mediation. In particular, this essay explores one of the suggested alternatives – the contextual ethical approach.
For the purposes of this essay, we will be discussing the following key issues:
a) the meaning of contextual ethics in relation to mediation;
b) whether contextual ethics offers a better way to ethically support parties in mediation;
c) the difference contextual ethics would make to Singapore’s current ethical paradigm; and
d) suggested changes to be made to the Singapore International Mediation Institute’s (SIMI) code of professional conduct if Singapore were to embrace contextual ethics.
II. Contextual ethics in relation to mediation
Contextual ethics is an alternative ethical approach to mediation that is argued for by Professor Rachael Field. Broadly, contextual ethics refers to ethical approaches that are not founded on universal rules but instead requires the ethical agent to consider and analyse the context of the situation at hand before arriving at a decision that is ethically justifiable. It is argued to be compatible with the nature of mediation where the core value of party self-determination makes a rule-based ethics approach inappropriate.
Mediation practices are relational, interactive and contextualized. This means that universal rules about mediator behavior and conduct such as those relating to the requirement of neutrality are unable to address the complex requirements of ethical decision-making in mediation. Since contextual ethics is not based upon a set of universal rules, it has been proposed as a suitable reform to the current mediation ethical paradigm.
In relation to mediation, the contextualised ethical approach regards the pursuit of relational party self-determination as its foundational tenet. At the same time, it gives mediators the flexibility to use their professional judgment and moral values to make ethical decisions and ensure party self-determination. The contextual ethics approach is also sensitive to the variation in circumstances and requires mediators to adjust their behaviors in response to the relational and imperative issues that emerge in each mediation. Hence, the contextual ethical approach is able to support party self-determination and acknowledge the reality of the interactive nature of mediation both at the same time.
III. Contextual ethics can better support parties ethically
A. Addresses power imbalance
Contextual ethics can better support parties in mediation ethically by addressing the power imbalances between them. In the current ethical paradigm, fairness is achieved when mediators are neutral and parties are able to achieve self-determination in the mediation process. However, the difficulty with mediator neutrality is that it does not directly address the issue of power imbalances between parties. If mediators are indeed neutral and is absent of decided views, they would allow existing power dynamics or imbalances between parties to play out. Power imbalance between parties may exist for many reasons such as the lack of education or language difficulties and these disadvantages may impact one party’s ability to exercise self-determination. When power imbalance is present, strict adherence to mediator neutrality and party self-determination would result in an unfair outcome that favour one party over the other. The mediation outcome would also end up being one that is dominated by the party who is, on balance, more powerful. In such cases, the final mediated outcome can hardly be said to be a self-determined one.
On the contrary, the suggested contextual ethical approach is able to address power imbalances and better support parties ethically. This is so as it allows mediators to be active in making decisions in the resolution process so s to balance out any power imbalance. Mediators are allowed to analyse and consider the context of each dispute before acting in ways that can best ensure party self-determination. In an actual mediation process, parties may reach a deadlock in their capacity to generate options or are unable to make further suggestions on an equal footing. Under the current mediator neutrality ethical paradigm, it would not be ethical for mediators to step in and participate directly in the process of option generation for the parties. However, with a contextual ethical approach, mediators can use their own judgment to analyse the context of the mediation and then act in ways that best support parties in reaching an outcome that is relationally self-determinant. This would include offering suggestions to the parties to break a deadlock during options generation so as to open up a new pathway for further negotiations. Hence, the contextual ethical approach in supporting party self-determination through a contextual analysis makes it a better approach to support parties ethically as power imbalances that occur in a mediation process is resolved.
B. Practical and allows mediators to make use of their own values
Other than addressing power imbalance between parties, the contextual ethics approach is also a better approach to support parties ethically because it brings a more pragmatic element into the mediation process.
The current mediator neutrality ethical approach has been criticized as an imperfect concept that is at most idealised. Mediators are human beings who inevitably bring their individual and personal values and beliefs to facilitate the process of mediation. As a result, mediators are inevitably affected by their own set of cognitive and motivational biases in the contextual situations. In fact, a thought process is naturally invoked in the minds of mediators just from hearing the parties’ description of the dispute at hand. The mediator would consciously or subconsciously begin to assess and evaluate the dispute and the relations between the parties. This natural thought process also shapes and affects the mediator’s suggestions, facilitation, and role which would all have an influence on the outcome of the mediation. In practice, mediators who are affected by their own opinions and judgment would be tempted to step in and participate in option generation for the parties and propose fairer offers for agreement or to resolve power disparities. However, under the current mediator neutrality ethical paradigm, mediators who do so would be called out for being unethical.
Contextual ethics is superior to the mediator neutrality ethical approach in this aspect. This is so as under a contextual ethical approach, mediators are allowed to analyse the context and circumstances of the dispute and parties and then respond in ways that best support the achievement of party self-determination. Mediators can take into account their own moral values and judgment when assessing the context of the dispute at hand, so long as it is for the purpose of upholding parties’ self-determination. In this sense, the contextual ethical approach in supporting parties ethically is also realistic and practical.
C. Criticisms of the contextual ethical approach
However, despite the benefits of the contextual ethical approach, some have cast doubts on it. The main criticism is that contextual ethics is an unprincipled approach and risk being too subjective. This is so as the contextual ethics approach is one that is without clear universal rules and guidelines. Mediators inevitably bring in their individual values and beliefs to facilitate the mediation process, and these are subjective judgments that are relative to social, cultural, historical or personal circumstances. Contextual ethics may end up becoming a discussion that is less on ethics but more on morals.
Proponents of contextual ethics have counter-argued that contextual ethics is not subjective and unprincipled when understood as an approach that remains true to the primary norm of party self-determination. The focus on the core value of self-determination does not require mediators to abandon the established ethical culture of mediation. Instead, mediators are required to consistently reflect on the mediation process with the current values and practices that have been developed to date for mediation ethical purposes. Hence, this would mean that the contextual ethical approach in mediation would be one that can be thought of as a principled relativism that is subjected to the needs of the parties during a mediation process.
Collectively, the above arguments support the contextual ethical approach as one that is better able to solve the ethical issue of the power imbalance between parties to a mediation.
IV. Embracing contextual ethics in Singapore
In Singapore, the growth of mediation has been extensive ever since the initial introduction of court-based mediation in the 1990s. Currently, there are four leading institutions in Singapore offering distinct but related and mutually supporting mediation services – Singapore International Mediation Centre (“SIMC”), SIMI, Singapore Dispute Resolution Academy (“SIDRA”), and Singapore Mediation Centre (“SMC”). The development of these four institutions is in line with Singapore’s role as a regional commercial and judicial hub. Asian economies are thriving and Singapore is well-positioned to take advantage and become the top choice for cross-border dispute resolutions. Singapore should consider the contextual ethical approach as a possible reform to our current ethical paradigm in order to continue developing the process of mediation in Singapore.
In the following discussion, we will be looking at the SMC’s, SIMI’s and court-based mediation’s code of professional conduct in order to get an overview of the ethical paradigm for mediation in Singapore.
Mediators from the SMC, SIMI and court-based mediation are governed by their own codes of conduct when in practice. Upon a reading of the codes of conduct from these three institutions, Singapore’s current mediation ethical paradigm generally focuses on the principle of neutrality and impartiality. Accordingly, clause 2.1 of SMC’s mediators code of conduct provides that the mediator shall be “impartial and fair to the parties”; clause 4 of SIMI’s professional code of conduct for mediators provides that a SIMI mediator should “act in an independent, neutral and impartial way; and clause 3.2.1 of the court mediation’s code of ethics provides that a mediator shall be “committed to conduct[ing] the mediation impartially…and must remain neutral in all mediation proceedings”. Hence, generally, mediators in Singapore are said to have behaved ethically when they are neutral, independent and do not act in any capacity for any of the parties.
Since the general ethical paradigm for mediation that is adopted by Singapore is that of neutrality, the adoption of a contextual ethics approach will result in a significant departure from what would be considered ethical mediator behaviour.
Previously, mediators under the mediator neutrality ethical paradigm are only allowed to manage the process of the mediation and not the content of the dispute at hand. The SMC code of conduct provides under clause 4.4(d) that mediators should only seek to “facilitate negotiations between the parties”. Clause 5.10 of SIMI’s code of conduct also provides that mediators should “rigorously guard against” prescribing or offering suggestions to settle the dispute between the parties. Similarly, clause 3.4.1 of the court-based mediation’s code of ethics provides that mediators shall leave the decision on “whether and how to settle solely with the parties”. Hence, under the current regime, it would be unethical for mediators to step in and help parties steer away from the deadlock, participate in option generation for the parties or offer a proposal for an agreement.
However, the introduction of a contextual ethical approach will no longer make it unethical for a mediator to intervene when parties reach a deadlock during negotiation, so long as the act is for the purpose of supporting the parties in reaching an outcome that is relationally self-determinant. Mediators under the new contextual ethical approach will be able to use their own judgment, in appropriate circumstances, to analyse the context of the dispute and assist parties to reach an agreed settlement.
V. Changes to SIMI’s code of conduct
If Singapore embraces the contextual ethical approach as a reformed to our current ethical paradigm, changes would need to be made to our existing mediator’s code of conduct to ensure consistency and clarity. In particular, this paper seeks to suggest possible changes that can be made to SIMI’s code of professional conduct.
Firstly, a new clause 4.3 needs to be inserted under the section titled “Independence, Neutrality and Impartiality”. This new clause would set out the contextual ethical approach. Importantly, this clause shall provide that it is only acceptable for a mediator to adopt a contextual analysis of the dispute when it is to support the parties in achieving self-determination. The crux of the new clause would be as follows:
4.3. Subject to the existing value of independence, neutrality and impartiality, mediators shall be allowed to adopt a contextual approach in facilitating the mediation process, so long as the main objective is to support the parties in achieving self-determination.
Secondly, an additional clause 4.4 can be included in the code of conduct to ensure the competency of mediators under the new contextual ethical approach. It is acknowledged that the complexity of the decision-making required under the contextual ethical approach meant that its implementation would require a significant investment in mediator’s professional training. Mediators must necessarily be able to professionally evaluate the developing needs of the parties during the mediation process and then respond to those needs with appropriate choices and decisions to support party self-determination. Hence, a new clause regulating the competency of a mediator under the contextual ethical approach needs to be included in SIMI’s code of conduct. The crux of the clause would be as follows:
4.4 Subject to the practice of a contextual ethics approach set out in clause 4.3, mediators shall have completed the required training that assist them to recognise power imbalance and issues relating to control and intimidation and take appropriate steps to manage the mediation process.
In suggesting the necessary reforms for SIMI’s code of conduct, the requirement of neutrality would remain unaltered in the code. This is so as mediators are still required to be fair to both parties and not be prejudiced or biased towards a particular party. Neutrality in this sense does not serve to act as an ethical paradigm but it serves as a starting point for mediators in a mediation process. Mediators are still required to act in accordance with the existing values and principles to ensure a fair and unbiased mediation process.
Additionally, clause 5.10 which warns mediators from prescribing or offering suggestions to settle the dispute between the parties would continue to hold, subject to the practice of the contextual ethics approach. This would mean that mediators should still refrain from participating directly in the option generations stage unless required to help parties achieve self-determination and resolve any power imbalance between parties.
In the initial stage of introducing the contextual ethical approach, guidelines can also be provided to articulate the direction of the contextual ethical approach. This will help guide mediators in turning the theory of this approach into one that is concrete and pragmatic. Certainly, these guiding principles are not permanent and should be flexible enough to develop with the development of exemplary practices. Possible guidelines can include the following:
a) Mediators are required to undertake thorough contextual analysis;
b) The contextual analysis must take place within a framework of values that upholds the core value of party self-determination;
c) The contextual ethical approach must not impose a decision on the parties; ans
d) Parties must be able to exercise informed consent.
VI. Conclusion
A contextual ethical method in mediation with relational self-determination of parties as its foundational tenet would give mediators the flexibility to make use of their professional judgment and moral agency to make ethical decisions. It also ensures that the promise of relational party self-determination is made possible when power disparities between parties are balanced out with appropriate intervention by the mediator.
In light of the advancement of mediation and the increased use of it in Singapore, amendments and reforms need to constantly be made to ensure the practical workings of the mediation process. Further, many experienced mediators have opined and acknowledged the fact that they have experienced difficulty and stress in exercising mediator neutrality. This is because the demands of the complex practice of mediation often require them to intervene and play a more active role. Hence, the introduction of the contextual ethical method would be a positive advancement in the mediation field and would ensure a practical and effective working of the mediation process.