by Susan Tay & Christian von Baumbach
This article is reproduced with the permission of the Singapore International Mediation Institute (SIMI). The article was first published in SIMI’s e-newsletter, SIMI News Issue #6, in December 2024.
In a series of thought-leadership articles launched by SIMI in conjunction with our 10th anniversary, Ms Susan Tay and Mr Christian von Baumbach, both SIMI Certified Mediators, share their thoughts on the important issue of ethical considerations when mediating a dispute.
A conversation
“Sometimes, we do come across cases that make me wonder,” a mediator shared casually at a gathering. This mediator has been mediating for over 20 years. She also volunteers at a community mediation programme.
“There is a company who appears to sue their various tenants regularly on very dubious grounds. Sometimes, it is so outrageous that even I, who am not a lawyer, smell something fishy. They would then engage in the mediation process. Almost all the tenants would settle. Why would they want to engage in litigation over a few hundred, even a few thousand dollars? The company almost always ends up getting from the tenants what they otherwise might not have been able to in a court of law.
This company has become such a regular at our mediations that all the volunteer mediators have had experience mediating their cases.”
“The company was never called out?” I asked.
“That’s not the purview of a mediator, is it?” the mediator said in exasperation. “In fact, I am not sure if we should under these circumstances. I do feel that the company is unethical in its dealings with their tenants by suing them and then hoping they will settle.”
What can we do?
“You’d think a field that self-consciously sees itself as “doing good” would have a well-developed literature on ethics, but ours does not. We are awash in texts that explain how to mediate effectively, profitably, spiritually, sensitively, and cross-culturally. But guidance in mediating ethically is in short supply.” – Ellen Waldman, “Mediation Ethics”
Neither of us started off as mediators in our careers.
“I was a litigator, problem-solving for clients and winning cases. In that arena, it was easy to lose the way of a truly effective and enduring solution for my clients when one was pushed to advance an aggressive stance by all means,” said Susan.
“While I undertook Japanese studies, lived in Japan for over six years and worked as a translator. Despite my high level of intercultural competence, some skills were missing to effectively deal with intercultural conflicts,” said Christian.
Mediation was, therefore, such a breath of fresh air. Collaborative and creative problem-solving approaches, never contemplated before, were now prevalent. It was exciting. But as experience grew and we encountered more, we began to see the mediation field at risk of being void of ethical principles. Our practices became habitual and mechanical, “pattern-following” without reflection on whether certain actions were fair, just or principled.
“This was what had always been done, what could we do?”
Should ethics matter?
In fact, should we allow ethics to come in the way of a settlement between parties who have been
feuding for years?
At first blush, the answer seems obvious. Of course, ethics must matter because mediation is part of a justice system. Professional ethics should not just apply to judges and lawyers, but they should also apply to mediation professionals. Any judicious dispute resolution must have and be seen as an equitable platform with procedural fairness for informed decision-making. Ethics is the important pillar supporting fundamental values like impartiality and self-determination which are so crucial to a durable mediated outcome.
In practice, the line is a lot fuzzier. Often, we get caught up in the frenzy of a close settlement and find ourselves putting ethics in a far second place.
For example, we tell ourselves that there may be instances of a slight power imbalance but look at the far bigger picture – these are parties desperately seeking a settlement so that they can finally put this nightmare behind them. Does it really matter that they may be settling under pressure, or that the other party definitely has the power of resource on their side? Who are we to jeopardise their chances for peace at last?
On the other hand, imagine the more likely scenario of parties waking up the next morning remembering only the short ends and the pressure. For days or weeks, all they may be thinking about was how the process was unfair and the eventual outcome “unsatisfactory”. Regrets and buyers‘ remorse may ensue which would then lead to escalation of conflict in the aftermath of a perceived bad settlement, and worse, accompanied by a tremendous loss of faith in the mediation process.
This article may not be the absolute answer to this question, but we hope that it will shed light on why ethics must surely matter. Like in a court of law, in corporate governance and in our daily lives, we make a case for why any kind of settlement cannot be enduring without ethics.
What are the ethical standards and where do we find them?
Omer Shapira in “Mediation Ethics: A Practitioner’s Guide” profers that mediators’ ethics and the ethical practice of mediation are the marriage of two concepts: the concept of role (acting as a mediator) and the concept of ethics (doing the right thing). Mediators’ ethics means the moral obligations and ideals of those who engage in the conduct of mediation.
The bases for such ethics can come from several sources:
- Legislation – An example is the Singapore Convention on Mediation Article 5. This is the provision setting out the ground for refusal to grant relief to an International Mediated Settlement Agreement (IMSA). These grounds include:
- A serious breach of the standards applicable to the mediator or the mediation without which that party would not have entered into the IMSA
- A failure by the mediator to disclose circumstances to the parties which give rise to justifiable doubts regarding the mediator’s impartiality and independence and such failure to disclose had a material impact or undue influence on a party without which failure that party would not have entered into the IMSA
- Case Law
- Codes of Conduct that mediators choose or are required to submit to by virtue of joining a professional organization e.g. the Singapore International Mediation Institute (SIMI) which publish the SIMI Code of Professional Conduct (“Code”) .
SIMI offers the SIMI Code of Professional Conduct (“Code”) is one that “provides guidance and markers for SIMI Accredited Mediators (“SIMI Mediators”) on the professional conduct expected when they undertake a mediation. It therefore also informs users of mediation services what they should expect from SIMI Mediators in terms of their professional conduct. Subject to the mediation agreement between the SIMI Mediator and disputing parties, the Code serves as a default code of conduct for that SIMI mediator. We aim for the Code to be the cornerstone of professional conduct, which will inspire trust in users of
mediators and mediation services.”
The Distinction Between Ethical Issues and Ethical Dilemmas
An ethical issue involves a clear ethical responsibility one must act on. It is a straightforward mandate. An ethical dilemma, on the other hand, involves at least two courses of action with one resulting in a clash of ethical responsibility over the other.
Ethical dilemmas also often arise between parties from different backgrounds. This is because ethics are driven by our own culture, values and even life choices. Our backgrounds can and will affect our ethical standards.
As two mediators with fairly different upbringing and culture, living in two very different continents of Asia and Europe, both of us have differing views on what constitutes ethical standards for certain aspects of the mediation process. For example, caucus sessions are common, useful and even necessary in Singapore and possibly many Asian countries. However, mediators in Germany tend to avoid caucus sessions to emphasize transparency and self-responsibility.
Aspects of Ethical Dilemmas
1. Mediator’s biases
Mediators can be affected by conscious or unconscious biases. Biases are a natural and to some extent unavoidable part of human nature. Our biases help us to navigate through our daily lives without having to think too much about every action and encounter. They can become problematic, from an ethical lens, if they affect the mediator’s impartiality. If we are not aware of our biases or if we willingly ignore them, they distort our perception and our decisions.
Suggestion: Mediators must reflect on our biases and ensure that they do not affect our impartiality. Regular supervision by senior mediators and sharing with fellow mediators can support this self-reflection process.
2. Dual mandates and hidden agendas
In organisational mediations, mediators are usually hired by the human resource departments, team leaders, or CEOs. The participating parties or disputants, on the other hand, are likely employees of the company. Such a situation can lead to a dual (and often conflicting) mandate where one mandate is to assist the conflicting parties to solve their conflict on their own, based on voluntariness and self-determination, while the other, which sometimes is not spelt out, is to solve the conflict in a certain way, regardless of whether the solution aligns with individual parties’ wishes or not.
Sometimes, clients hide their agendas on purpose when they want to buy time or avoid taking responsibility for certain decisions or solutions. Mediators face the dilemma of whether to support the hidden agenda when it does not align with the well-being of the disputing parties.
Suggestion:
It is important to clarify the aim of the mediation and the client’s expectations and goals. We then differentiate between the organization’s goals and those of the people who will participate in the mediation. Decide early on which principles should prevail. Values like voluntariness, informed self-determination, confidentiality will probably be of great importance in one way or another.
Case Study 1
Engaged by an NGO, we were assigned by the general manager to mediate a conflict between members of the local team. We started with separate sessions, first with all the team members and then with the manager.
We soon found out that the manager did not trust one employee in the team and thought that he was responsible for the conflict. Although the official aim of the assignment was to support an open discussion between all the team members to sort out their differences and re-establish a trusting working relationship, we discovered that the managers had already decided that they wanted to get rid of this team member as they did not think that he could change.
The problem was that the employee could not be fired due to the small team size and strict regulations in Germany. We quickly realised that there was a conflict not only within the team but also between one team member and the manager.
This was an example of a dual mandate and a hidden agenda. Our approach was to talk to the manager about his goal and give him a choice: he could either talk openly to the team member and contribute to the mediation to sort out the conflict, or we could not continue the mediation and he would need to find another approach.
It was clear to us that the mediation could not be successful without fulfilling the principle of transparency and without the manager taking responsibility for his own involvement in the conflict.
3. Secrets and intransparency of caucuses
Transparency and confidentiality are important principles of mediation. In practice though, they often contradict. For mediation purposes, it might be best to share all relevant information with the other party to gain trust and find solutions based on full disclosure. Some information can, however, reveal a weakness or weaken a negotiating position, and is therefore kept secret. That is one reason for caucus sessions where parties can talk more openly to the mediator.
Ethical issues might arise if information is revealed that is against the law or may require an obligation on the mediator to report the incident. An example in point is when the well-being of children is at risk. In some greyer cases, it can still be incriminating to keep information secret, as any agreement that is reached would not be sustainable. This could be the case if one party admits to fraud in the caucus session but asks the mediator to keep this information confidential.
Suggestion:
Explore the high possibility of an agreement being void or unenforceable due to non-disclosure. Some of us may even have to recuse ourselves from further acting as the mediator due to the ethical dilemma of not being able to divulge a possible crime.
4. Mediator’s economic interests
In situations where the hirer and the disputing parties are different, there is often the pressure for mediators to push the parties toward a settlement. Workplace mediations are good case examples.
The company who pays for the mediation wants to see the results. They want the feuds to end, people to get back to work, productivity improves or at least goes undisrupted. The effectiveness of a mediator depends on that. It is unlikely the mediator will be reappointed if this dispute cannot be settled.
There is also the case where the mediator regards mediation without settlement as a failure that will damage the mediator’s reputation.
Suggestion:
It is common for mediators to peg success rates to settlement rate. We must recognize a good outcome as one that has already planted the seeds for an effective dispute resolution method or better communications or clearer understanding of each other’s stance. A good process far outweighs a bad settlement. In this regard, we urge the mediation industry to avoid any practice of paying mediators using a contingency fee formula.
A good process far outweighs a bad settlement. In this regard, we urge the mediation industry to avoid any practice of paying mediators using a contingency fee formula.
5. Disputant’s autonomy versus Substantive Fairness
That we should support party autonomy is clear. It is after all an important tenet of mediation principles. But what if a mediator feels that the party has agreed to terms that are unlikely to serve their long-term interests or worse, if the agreement was based on misinformation or advice that was wrong?
This type of dilemma surfaced many a time and mediators often experience the tension between respecting party autonomy and ensuring substantive fairness.
If you are a mediator who respects party autonomy above all else, you will be hesitant to impose your standards on what is good or just (mediator’s bias as a case against it). But if you are a mediator who wants to live by the principle of supporting party autonomy with decisions that bore substantive fairness, then you will be comfortable exploring further whether these decisions are fair and just.
Suggestion:
Although there will always be differing camps on how this should be dealt with and while none can definitively be said to be unethical, we as mediators should still be clear on where we stand on these issues and communicate our stance to the parties. Ask parties if they have sought their lawyer’s advice on this or pose questions like “have you thought this through? Is this an enduring solution that will work in the future as well?”
Ask parties if they have sought their lawyer’s advice on this or pose questions like “have you thought this through? Is this an enduring solution that will work in the future as well?”
- “Have you sought legal advice on this?”
- “Have you thoroughly thought through this decision?”
- “Is this solution sustainable in the long term?”
This type of questions can help ensure that the parties make an informed and sustainable decision.
Case-study 2
This mediation was for a couple during their divorce proceedings. The breakdown of their marriage happened after the husband found out that the wife was having an affair with her supervisor at work. He was furious and since then had been particularly aggressive with the wife. He filed for divorce and insisted that the wife’s interests in the matrimonial flat be transferred to him with no compensation.
Despite knowing that she was entitled to half the property, the wife was desperate to agree, out of guilt and fear of her husband. She also wanted the divorce proceedings to be completed quickly .
This is a textbook example of a disputant’s autonomy versus substantive fairness. The mediators in this case decided to have separate conversations with both parties.
With the wife, she was asked if she had been advised by her lawyers on the impact of her relationship with her supervisor on the asset division. We asked her to think carefully whether the husband’s claim was feasible for her in the long run, especially if this property constituted most if not all her assets.
With the husband, there was discussion about his views on marriage and fidelity and if a breach of that fidelity must mean all the good that ever came out of that marriage was to be disregarded.
There was also some reality testing of whether the law shares his views. Perhaps, fairness for distribution of matrimonial assets did not necessarily hinge on a single factor.
The discussion with the husband was of course a lot more difficult but those conversations gave parties some food for thought and the settlement that was reached eventually, more informed and considered.
Conclusion
As mediators, we must have a grounded and solid belief that ethics really matter in ensuring fairness in the mediation process. This in turn will only result in a better outcome for the parties.
As mediation is a confidential process and therefore not easily subject to public scrutiny, it is ever more crucial that we embrace this belief and how it must play an important role in our self-governance.
The process may be confidential but at least two other parties will bear witness to how you have conducted yourselves and the mediation process – the disputing parties and sometimes, your co-mediator.
With the prevalence of more and more cases involving parties of different backgrounds and co-mediators from different jurisdictions, conversations between co-mediators of possible different approaches must be part of any pre-mediation preparations. It is only through these conversations that we will learn to appreciate the different ethical standards and how in our various approaches, we can more effectively support clients with diverse cultural and professional backgrounds.
Authors
Susan Tay
Susan Tay is an accredited Certified Mediator with Singapore International Mediation Institute. Her primary focus is family issues and she has been specially trained to also handle complex disputes involving parental child abduction. She is also a family lawyer primarily focused on mediation, either as a mediation advocate for her clients or as a mediator.
Christian von Baumbach
Christian von Baumbach is an accredited Certified Mediator with Singapore International Mediation Institute and the German Mediation Association, and an affiliate mediator of PracticeForte in Singapore. Christian’s mediation practice covers family mediation, workplace and team mediation, with a special focus on international and intercultural cases.
He is also a lecturer for mediation and intercultural communication at German universities and a mediation trainer with international experiences in Singapore and Japan.