Some of you, particularly those with children, no doubt remember “Pirates of the Caribbean“, a 2003 movie based upon a Disneyland theme park ride. In one scene, the movie’s heroine attempts to parley with the villainous pirate captain, invoking the protection of the Pirate Code, a kind of seafaring Model Rules of Professional Conduct. He sneers at her entreaties, dismissing the Code as “more what you’d call ‘guidelines’ than actual rules”.
That’s pretty much the state of affairs the mediation profession in the U.S. finds itself in with its own Model Standards of Conduct.
As mediators, we are all aware of the existence of standards of conduct that are meant to guide our practice. We speak with reverence – and in capital letters - of principles such as Informed Consent, Self-Determination, Impartiality. Most basic mediation training programs include some treatment of ethics: what principles guide practice, and how might mediators respond to specific ethical challenges.
Organizations like the Association for Conflict Resolution and the ABA Section on Dispute Resolution have drafted and approved such standards for their members. Private ADR providers have established rules for neutrals serving on their panels. Courts have promulgated them for neutrals serving in court-connected programs.
Although violation of these standards of conduct might cost you your membership card or result in your removal from a court-connected ADR panel, these standards are generally aspirational, as the preamble to the ABA/AAA/ACR Model Standards of Conduct for Mediators acknowledges:
These Standards, unless and until adopted by a court or other regulatory authority do not have the force of law.
The fact is that not one of these bodies of ethical standards regulates with the force of actual authority the conduct of mediators in private practice. They are, in the words of the pirate chief, more what you’d call guidelines.
Why do I point this out? So long as the private practice of mediation remains unregulated in the U.S., we must do our own policing. The state does not regulate us; we regulate ourselves. We each bear the responsibility of educating ourselves about our field’s best practices and conducting ourselves accordingly. And for those of us who train new mediators, we owe it to our profession to encourage those we mentor to strive with us to advance the field. Although principles such as competence and quality of practice may be aspirational only, at least for now, they are values that enhance our public standing.
Unlike the fictional pirates in Hollywood films, they have real-world impact.
{ 10 comments… read them below or add one }
I totally agree with you that we should regulate ourselves. By the time when govt or others impose regulations it will then become non-profession lead and monitor the profession.
Ah, Diane,
We live in a world with “white bones, sepulcher”; withered souls, our own amongst them, if not always, at least from time to time. When does introspection overcome the art of regulation? When do we account for our own sins and misdemeanors?
How can we expect others to resolve conflict if we are not really ready to resolve our own?
Are you or I perfect? Are we without blemish? And if we err, are we free to admit
to ourselves how far we have yet to travel, if not to others?
The rules and regulations will only ever go so far as to plumb our own inner depths, or the depth of others. Laws will never, ever, regulate, truly regulate, human affairs. The letter (of the law) without the spirit is vacuaous, empty, “white bones, speulcher.”
Lawyers, and those in conflict, manipulate the law. Ignore the rules. Justify behavior.
We cannot correct the conduct of others. We can only correct our own errors, and, if our spirit is right, help shed light so others can correct theirs.
When will we (seriously) start the dialogue about this part of being a mediator? Regulations are pro forma. True mediation is a matter of heart…and of honor…the latter in the truest sense of the word.
John Shaffer
Roy, thanks for your message. I know that others share your concerns, but I myself don’t agree that governmental regulation of mediation practice will harm the profession for the reason you give, although I think there is plenty of cause for concern in other ways. But for now, self-regulation is the best we can do – as well as teaching new mediators the importance of conducting themselves with integrity. We must all remember that when we mediate, we act as ambassadors for the field.
John, you write with such poetry and conviction! I know I’ve said this before, but you would make a great blogger with your talent for writing and your way with words. I particularly like what you say at the end…that it is a matter of heart and of honor. Without moral impulse or what you call spirit, rules are indeed white bones.
I wrote this post out of concern about the magical thinking that I have observed out there – mediators who think that these hallowed ethical principles have actual authority, who think that they provide real protection and possess regulatory power to curb bad behavior. That’s a false sense of security in the power of good intentions. Moral authority these guidelines might have, but they lack teeth, let alone bones. I’m about to teach a group of new mediators next week; I want to impress upon them the responsibility that falls on their shoulders as individuals to conduct themselves honorably, in a world without real regulations. I want them to feel the humbling weight of that responsibility on their shoulders.
Diane,
I’ve known for a long time you are a mediator, and teacher, of “heart and honor’. Those students next week will be lucky to spend some time with you.
My best to you, and for your efforts.
John
Thanks, John!
Diane, I guess I’m in the camp that says you can’t legislate morality (which is where I think John is coming from).
As you know, I am not a fan of mediator regulation, principally because I think the costs would outweigh the benefits, and because it would tend to reward mediocrity. But it may be that a workable regulatory scheme could be devised that preserves many of the benefits that exist in the current marketplace. One part of such a scheme would be an enforceable ethics code.
You are absolutely right that mediators have to try to adopt a workable system of self-regulation in the absence of government regulation. And a good place to start would be a set of agreed upon ethical principles that most of the profession takes seriously.
If you believe that government regulation is on the horizon, then that’s all the more reason for mediators to self-regulate and try to agree on what constitutes ethical behavior. If there is to be a government code of ethics, let it be drawn from something that experienced, responsible mediators devised themselves with the best interests of the profession in mind. That’s far preferable to having bureaucrats draw something up that doesn’t make a lot of sense. And it may be that the end result will simply be the government lending its enforcement power to what the profession has already agreed should be the rules.
Phil
Diane,
G’Day (actually just back from Australia!).
Good stuff- one of the many problems, which we have discussed before is the issue of self regulation. If it is not compulsory to join a group (such as the ABA or ACR), say Mr. Mediator (or Ms. Mediator) gets booted from the organization. Guess what, he/she still gets to privately practice with no worries and the public will never know.
My (very quick and knee-jerk) response would be it is vital for groups like JAMS, CPR, and CDRC’s ACR, and the ABA to embrace (make it mandatory) a joint program for qualification/certification (arrggh, I know you cringe when I use the “C” word!).
I still think, at least at the moment, IMI- http://www.IMImediation.org- provides that.
Phil and Jeff, thanks for weighing in. I’m always glad when you contribute.
Phil, I remain on the fence about the wisdom of governmental regulation of the mediation profession. Like you, I remain distrustful of bureaucrats and don’t have confidence that public regulation would produce desirable outcomes. The legal profession provides many a cautionary tale, including the geographical restrictions on practice and resistance to innovation (as in the case of collaborative law). The mediation field doesn’t need that.
I do have some faith in the market and would hope that the market will weed out the incompetent. Yet I’m concerned that there are no barriers to entry and that anyone can hold themselves out as a mediator. It means that the unethical can act in our name. What prompted me to write this was not to urge for formal public regulation of mediators but to remind us all that we bear collective and individual responsibility to advance the field.
Jeff, my friend, I know you’re a proponent of private certification. However, I’m not impressed by how ACR has handled it in the past or how it seems to be handling it now. They botched it once before. I’m also not eager to see the ABA Section on Dispute Resolution involved here; disrespect and even disdain for mediators who aren’t attorneys was very much evident at the annual meeting in April in NYC. It would require a well designed and fully inclusive process to successfully pull off a national conversation about private certification.
In the meantime, all we have is each other. With people like Phil and Jeff at the ready, there’s hope that we can make this work.
Diane,
whoa-whoa-whoa!
Please let me clarify- I am a fan of IMI but by no means private cerification as a whole. Credibility is vital for a certfication scheme and I think IMI has it. Other groups, like Safe Horizon (NYC, Community Dispute Res. Center) for example, is also one which I find credible but as for the:
ABA- No way, I do not think they should take the lead on this. I would hope they would support an multi-association initiative though.
ACR- From your comments and others, it seems like there is heaps of work to be done.
Jeff, my apologies! I definitely misread you there, and I stand corrected! I hope you’ll forgive me for getting it wrong.
BTW, I do admire the way IMI handled the issue of certification – it was an open and transparent process, and they made great effort to encourage input from stakeholders. And what you’ve told me about Safe Horizon gives me hope that private certification can be done right in the right hands. They strike me as an organization that cares deeply about best practices. I’d love to have an opportunity to take one of their trainings in fact – I know I’d learn a lot.
Thanks for setting me straight, buddy, and again, sorry about the goof.