Mediation Ethics: A Grounded Approach

In this article, we raise a set of concerns about the current state of thinking about ethics in dispute resolution in the United States, especially as it is reflected in the ever-proliferating ethical codes for mediators. In part this is a critique of the underlying ethical reasoning that appears to inform the codes, and in part it reflects our concern over the effects the codes may have on a relatively young professional field and a still-developing canon of mediation practice.

Utilizing insights from the actual practice of mediation, from the social justice literature, and from ethical debates in other professional fields, including law and medicine, we challenge what we characterize as “top-down” ethical thinking in the current codes and even in the arguments of their usual critics. We call this thinking top-down in two quite difference senses — it focuses primarily on the mediator, and it relies on an internal logic that proceeds from abstract principles to particular applications.

We argue that this approach to ethics in dispute resolution is fundamentally flawed. First, it ignores and does violence to a much richer and more diverse actual practice on the ground. Second, the current core principles rely upon an untenable distinction between procedural and substantive justice while ignoring other influential aspects of justice. Third, the focus on the mediator obscures other moments in the dispute resolution process that often affect ethical and justice considerations that could be in play.

Furthermore, we point out some troubling effects of this approach. Current ethical rules, as well as the critiques of them, promote a kind of thinking that hinders the development of particularized ethics for a more diverse actual practice. In addition, because of its limited focus and limiting assumptions, this kind of thinking leaves central areas of ethical reasoning undeveloped. Important social justice concerns have been unaddressed — a perverse result for a field devoted to the resolution of social conflict. And we are concerned that continued adherence to these codes and the style of reasoning underlying them risks undermining the capacity of the field to adapt itself to a wide variety of conflicts, actually inhibiting the development of effective practice. In response, we offer an alternative view, one which we call a “grounded ethics.”

A close examination of the codes of ethics for mediators that have been adopted in various states or by various professional associations reveals the central ideals held out for the mediator.¹ The codes focus on the mediator and proclaim a set of requirements or ethical mandates. These mandates exhort the mediator to:

• be strictly impartial both in the sense of being free from conflicts of interest and in the sense of not favoring any substantive outcome;

• assure that the process is consensual and that any agreements are to be voluntarily undertaken;

• assure that the substantive outcomes are to be determined by the parties; and

• protect the confidentiality of communications in the process.

Much argument in the field lies in the details of these requirements and the potential dilemmas that occur when two mandates may conflict (Bush 1994; Menkel-Meadow 2001). In turn, those arguments are fueled by rather passionate debates about the proper role of the mediator. For example:

• Is the mediator allowed to evaluate or pass judgment on the parties’ respective claims, or does that impermissibly compromise the parties’ self determination? That is, is the mediator’s role facilitative or evaluative? (See Kovach and Love 1996; Riskin 2003.)

• Should the mediator play an active role in assisting the parties in their individual empowerment and in their relationships with each other, or does that impermissibly substitute the mediator’s view of the conflict and its resolution for the parties’ views? That is, is it the mediator’s role to promote transformation of the parties and their relationship, or is it simply to assist the parties in resolution of their conflict? (See Folger and Bush 1996; Menkel-Meadow 1995b.)

For this article, we argue that these and similar quarrels are an inevitable by-product of attempts to hold to an artificially ideal view of the mediator’s role (see section below, An Ethics of Easy Divisions). We point out what all current ethics codes and even their critiques appear to have in common, which we have summarized as their “top-down” approach.

We characterize this approach as “top-down” in two senses. First, we mean that the rules, codes, and implicit commands proceed from the perspective of the mediator, often ignoring the perspectives of the parties as well as what happens in the resolution process before and after the mediator is active. And second, top-down characterizes an approach that begins with abstract principles and proceeds from there rather than from the particulars and contexts of the disputes. The preambles of the codes, the debates of the framers, and even the arguments of their critics proceed from a conception of the mediator’s role and then deduce the ethical mandates from that conception. The quarrels that form the heart of the debates in today’s practice and especially in academic circles thus become focused on contrasting views of the mediator’s role. Should mediatorsbe facilitative or evaluative? Should they be transformative or settlement oriented? (See, e.g., Silbey and Merry 1986.)

Three aspects of the current approach are problematic. First, we argue that this approach loses sight of the ways in which the particulars and context of a dispute structure the mediator’s role. Thus, we argue that different kinds of disputes lead to different ethical mandates. Indeed, the very conception of the mediator’s role will be, in part, structured by the dispute as well as by the views of the parties; that is, ethics are better constructed from the “bottom up.”²

Second, we argue that the facile or easy division of procedural and substantive justice built into the current approach (what we call an “ethics of easy divisions”) obscures analytical difficulties with that distinction and prevents a full analysis of justice considerations. We argue that the compartmentalization of procedural and substantive justice is artificial because each may deeply influence the other. Moreover, this compartmentalization leaves out other significant kinds of justice, particularly questions of inclusionary justice: which stakeholders deserve consideration or “count” in particular conflicts (Opotow 1990)?

Third, we argue that focusing principally on the mediator has led to a sharp constriction in the scope of ethical questions addressed or even raised. How do parties come to the table? Who is present? With what resources? How do parties view the dispute? How and by whom is the mediator chosen? How and by whom is the process defined before the mediator even enters the scene? How do parties live with the results of the mediation and the resolution? Profound issues of social justice and ethical practice are often at stake in these questions, but they escape scrutiny in most mediation codes of ethics. And, we argue, failure to include this larger, systemic view not only produces a foreshortened view of the process but also prevents the consideration of potentially effective systemic solutions to those problems that could more effectively foster social justice.

What our approach suggests is that different kinds of disputes require different ethical mandates for practicing mediators. And, in fact, when we look closely at the development of practices in the field, we see precisely that state of affairs (cf. Pou 2003). In at least some of these instances, remarkably different practices take place within the same geographic areas and are used by similarly trained mediators. That is, the different ethical mandates in different practice areas cannot be explained by differences in locales, cultures, or training.

A comparison of the practices and ethical thinking in the mediation of business, commercial, or personal injury disputes with the practices and ethical thinking in the mediation of divorce disputes in one geographical area illustrates this point. In Massachusetts, these two kinds of disputes, if litigated, would find their way to just two different branches of the Massachusetts trial court: the superior court and the probate court. And in Massachusetts, some mediators (including one of the authors, Brad Honoroff) practice in both fields.

An outsider examining the usual practices in these two fields in Massachusetts will see markedly different procedures. Divorce mediation is usually conducted without lawyers present, often with little use of private caucuses or shuttle diplomacy, with a requirement that parties undertake full disclosure to each other, and usually over the space of several sessions and several weeks. What is usually at stake is the division of the couple’s assets, their financial obligations to each other and their children over a substantial period of time, and their respective ongoing childrearing responsibilities.

In business, commercial, and personal injury disputes, the typical mediation is conducted with counsel and principals present, with extensive use of private caucuses, and with no obligation of full disclosure. The goal is often to reach a resolution within the day. What is at issue can be as varied as a contract dispute; allegations of professional malpractice; responsibility and compensation for property damage, serious injuries or death; or dissolution of a partnership.

Within the contexts of these two sets of practices in Massachusetts, mediators on the ground appear responsive to quite different ethical mandates and struggle with quite different commands or conflicts in ethical codes.

• In the family divorce context, mediators act with an affirmative obligation to ensure that each party fully discloses all relevant matters — such as otherwise hidden resources or private business valuations — to the other. In the business, commercial, and personal injury disputes, parties may refrain from disclosing matters that the other has not discovered; if despite a mediator’s urging a party wishes to protect that information, mediators feel their ethical obligation is to respect the party’s choice not to disclose.

• In the family divorce dispute, mediators struggle with the mandate to protect the confidentiality of each party: if the mediator learns from one party in a confidential session of information affecting, for example, the ability to provide support for spouse or children, the mediator’s obligation to promote disclosure may conflict with the obligation to protect confidentiality. In most business, commercial, or personal injury disputes, mediators give primacy to the obligation to protect confidentiality, even if the information not otherwise shared might substantially affect the parties’ negotiations and thus the substantive outcome.

• In the family divorce context, mediators interpret the mandate for self-determination as an imperative to ensure that both parties’ decisions are well informed — which includes encouraging them to acquire whatever financial, legal, or counseling advice they may need — and free from any coercion. In the business, commercial, or personal injury context, mediators leave far more of the responsibility to be well-informed to the parties and their counsel; at the same time they appear to be far quicker to be directive and evaluative, in the sense of giving their own opinion of the strength or weaknesses of aspects of the parties’ legal cases.

• In the family divorce context, mediators feel an ethical obligation to pass some judgment about the substantive terms of the negotiated agreement, whether that is put in terms of refusing to go forward with terms that are not in the children’s best interest or terms that will not pass muster with the probate court. In the business context, mediators feel little responsibility for the fairness of the agreement; rather their ethical obligation is to allow the parties to determine their own agreement.

We might develop several interesting hypotheses here. One would suggest that the fewer procedural protections there are for the parties, the more a mediator must be on guard to assure consent, self-determination, and fair outcomes (Simon 1998).³ When counsel are not present, for example, the ethical imperatives to ensure self-determination may be quite different than when counsel are involved throughout the process.⁴

Beyond procedural differences, however, we would suggest that the substantive nature of the dispute will affect both mediators’ and parties’ perceptions of the mediator’s ethical responsibilities. So in the family divorce context, disputes that involve such profound family matters as future relationships, long-term financial security, and intergenerational structures may well call for a set of ethical duties to promote a level of procedural and substantive fairness different than in a business, commercial, or personal injury dispute. Indeed, we argue that the different procedural practices that have grown in these different contexts are partly a response to the different substantive and relational matters in play.

Other contexts yield other duties. The ethical mandates for environmental mediations, for example, might be quite different than required by the general codes designed for all disputes (Brown 2000). Because of the nature of many of these disputes, mediators may feel a greater obligation to ensure that all appropriate stakeholders are represented at the table. Given that some stakeholders may be profoundly affected but not represented (e.g., future generations), some mediators may feel obligated to pass substantive judgment on the outcomes contemplated by the parties.

Using examples from public disputes, Lawrence Susskind (2004) has long argued that mediators should be accountable to interests other than those at the mediation table and that in actual practice mediators make judgments that may be at odds with parties’ assessments of their own interests. His argument goes beyond merely the pragmatic and procedural notion that many such agreements will have to be approved or ratified by other bodies; he argues that mediators have an ethical duty to press the parties to incorporate interests greater than their own. In addition, the usual notion of protecting the confidentiality of all communications from the public at large may run into violations of law, regulation, or the public trust, and many public dispute mediators may argue that complete confidentiality is unethical.

These examples and others⁵ illustrate that the closer one looks at the actual practice of mediators in different contexts, the more one notices that mediators are responsive to differing ethical imperatives. Reflective practitioners describe conflicts in ethical norms and propose solutions that are different in different contexts. As her ethical duty changes depending upon the context, a mediator cannot rest her practice on a rote recitation of the precepts and duties derived from an abstract conception of the role.⁶

In the early versions of most ethical codes for mediators, an overarching principle was that substantive outcomes be determined by the parties. Procedures and their design were left to the mediators or the dispute resolution program offering the services. The process as described both in practice and in mediator training sessions reflected the notion that “the substance belongs to the parties; the process belongs to the mediator.”

In recent years, some practitioners have argued that parties should also have some say in some of the procedural choices that are made, including the selection of the mediator (and perhaps her style or emphasis), the design of the process, and whether to participate in the process at all.⁷ For example, parties or their counsel might participate in the design of public meetings and private caucuses, determine what kinds of experts to present, or set ground rules for confidentiality (presuming that those ground rules do not violate statutory or other ethical obligations). Some theorists have also argued that sharp distinctions between substantive outcome and procedural issues are not tenable (Folger 2001). But many of the codes and much of the resulting practice still revolve around this distinction and also fail to recognize that outcomes and process do not exhaust the list of ethical concerns in mediation.

We call the tenet that declares the process to be the responsibility of the mediator and the substance to be the responsibility of parties an ethics of easy divisions. It is easy because it is clear and simple conceptually, but operationally and ethically, its division of responsibility is problematic. An ethics of easy divisions is artificial because process and substance are inextricably linked. Disentangling them portrays the mediation process as neat and party empowering, but it offers the parties and the public a tidier view of mediation than it can actually deliver.

An ethics of easy divisions narrowly focuses on two kinds of justice: process and outcome. The justice of process focuses on how in its emphasis on procedural justice (Lind and Tyler 1988). The justice of outcomes focuses on what in its emphasis on distributive justice (Deutsch 1985). Clearly how and what are key justice contingencies, but an ethics of easy divisions ignores who, an important justice contingency because questions of process and outcomes follow from knowing whose interests, rights, and needs count (Stone 1974; Opotow 1997).

The ethics of easy divisions implies that process and substance constitute the universe of ethical concerns and renders the exclusionary potential of mediation as unproblematic. Indeed, ethical challenges to the field of alternative dispute resolution (ADR) can be understood as protests against this easy division of responsibility and have focused on concerns with inclusionary justice and questions about “who counts?” These critiques concern both flawed exclusion and flawed inclusion.

Flawed exclusion, the first kind of ADR ethical critique, asks, “Who is excluded but should be included?” This critique describes exclusion as problematic because it leaves out relevant stakeholders. Parties at any level of analysis (i.e., individuals, groups, communities, institutions, etc.) who are not included in a mediation cannot raise issues that may ultimately affect their well-being (Susskind 1981). People not defined as harmed by extant rules or prevailing norms may be excluded as parties to a dispute and consequently lack recourse for harms they experience. This has been the case when low-income or racial or ethnic minority communities have disproportionately suffered from environmental pollution yet have had to struggle to make the case that they have incurred damage and gain a place at the negotiating table (Bullard 1994).

As a practical matter, resolving conflicts can depend on deciding whose costs and benefits matter. It is neither possible nor practical to consider every possible stakeholder or to conduct every conceivable cost/benefit analysis (Opotow and Weiss 2000). Jostling for inclusion of one’s group and its concerns in a conflict is a political process that ultimately determines whose issues count. Not all stakeholders who will be affected by agreements, such as those in poor communities or future generations, are positioned to advocate for themselves. Similarly, in the family sphere, minors or elderly dependents who ultimately will be affected by marital agreements may not be included as parties to a negotiated settlement.

Flawed inclusion, the second kind of ADR ethical critique, asks, “Who is included but should be excluded?” This critique renders inclusion as problematic because some people, when forced to participate, will suffer because of it. This critique argues that some parties, such as victims of domestic violence, should not be pushed into a mediation process that is predicated on stakeholder self-determination and equality when structural and enduring inequalities in a relationship may further disadvantage and ultimately harm them (Grillo 1991). Victims of domestic violence may have few personal or monetary resources, few alternatives to an abusive relationship, or low self-esteem. Their desire to make a bad situation better by repairing a relationship or by fleeing it can yield a weak negotiating position (Maxwell 1998). For a variety of reasons, disadvantaged parties may be unable to raise issues that concern them in mediation and instead may choose to walk away from their complaints and continue to bear a large share of a relationship’s costs and burdens.

Nor does inclusion in the dispute resolution process guarantee equal participation. In the environmental sphere, for example, a party with few economic resources might settle a mediated land dispute for a lower dollar amount than is fair because of an immediate need for cash. Processes and rules do not affect all parties the same and can affect some parties more negatively than others (Honeyman 1985). Disadvantage can have insidious effects on process and outcome. As a result, ADR process can conform to the ethical canon and agreements may pass scrutiny (if there is oversight) yet may fail to redress an unequal situation (Delgado et al. 1985).

Although ADR ideally occurs among relatively equal parties, and ethical mandates seek to promote equality, in actuality, inequalities among the parties can be durable and resist attempts to level the playing field (Davis and Salem 1984). Some individuals, communities, or institutions are more advantaged than others. Some have prior experience in conflict resolution; some have more rights (e.g., adults compared with children, citizens compared with undocumented immigrants) or better legal advocacy than others; and some can bear larger immediate costs to achieve long-term gains. These advantages can create inequalities among the parties that cannot be redressed by the existing ethical mandates of ADR.

Ceding substance to parties and viewing an agreement as just “because the parties want it” sidesteps two thorny ethical dilemmas in the field: parties left out of negotiations and parties included without equal resources. Consequently, ethical mandates that advise mediators to take care of process but let parties handle substance ignore the reality that, even with a procedurally just process, outcomes are influenced by the original distribution of resources and a status quo that incorporates inequality. A consideration of inclusionary justice can interrupt the ethics of easy divisions and its neat but misleading compartmentalization of procedural and substantive justice. We position inclusionary justice as an important and primary ethical concern, forcing consideration of what might be fair for whom. Unless inclusionary concerns are explicitly raised in the ethical canon, they can be ignored in mediation. An ethics of ADR that sidesteps the question of inclusion also sidesteps social justice.

One striking aspect of the great majority of ethical codes that have emerged for mediators and other neutrals is that virtually all of their provisions focus upon the time of the mediator’s service. Rarely are there any provisions that address the moments before the mediator is chosen — such as who is represented at the table — nor are there any provisions about what happens after the mediator leaves the scene. Nor do these codes include provisions that look to the ethical responsibilities or contributions of any other actors beyond the mediator in the dispute resolution system: not parties, not counsel, and not the organization that may provide the service, be that a court, other public entity, or private organization.⁸

Significantly, this focus on the mediator tends to exacerbate the problems we have raised in the previous two sections of this article. It reinforces the predisposition to assign ethical responsibilities regardless of context and makes it that much more difficult to be responsive to what may be differing mandates in different contexts. And by circumscribing the horizon of concern, the questions of social justice raised by an “ethics of easy divisions” are defined as outside the scope of a mediator’s ethical obligations. In addition, focusing only on the mediator may distract us from systemic solutions to these problems.

We should not be surprised that codes of ethics developed by and for professional mediators focus on the professional and her obligations. It is a common sociological observation that ethical codes for professional organizations serve both to police their members and protect the profession. Yet in the field of mediation there have been some signs that the singular focus on the mediator is inadequate. The recently revised Model Standards of Conduct for Mediators (2005), for example, makes a nod to bringing in more of the perspective of the parties — e.g., in the design of the dispute resolution process — although that is explained as expanding the notion of party self-determination to certain “process components” (see Reporter’s Notes (Joseph Stulberg) for the Model Standards of Conduct for Mediators 2005).

Perhaps most interestingly, the CPR-Georgetown Commission on Ethics and Standards in ADR (2002), in response to legal commentary that organizations should be held responsible for the legal services they provide, promulgated “Principles for ADR Provider Organizations.” This is a set of guidelines without the force of law for organizations of various kinds that provide ADR services including mediation. While most of the provisions suggest that the dispute resolution organizations themselves bear responsibility for ensuring mandates also required in the mediator’s code, such as competence, impartiality, and disclosure of potential conflicts of interest, there are a few that suggest that broader issues are relevant. For example, Principle IV asks organizations to make efforts to provide services to low-income parties and, strikingly, Principle III states that organizations have an obligation to ensure that ADR processes performed under their auspices are “fundamentally fair” (see also Menkel-Meadow 2002). Those provisions underscore a concern and may provide a glimpse of an opportunity. But until a way is found to incorporate or otherwise realize such concerns, isolating the mediator’s ethical obligations may only serve to exacerbate tensions and conflicts inherent within those ethical provisions.

We have argued above that failure to assess who is included and with what degree of voice threatens the ethical standing of any process for resolving conflict. Yet existing codes of ethics appear to simply assume that the appropriate parties are at the table; they often begin, for example, with the criteria for choosing the mediator. Obviously those codes are not asking an important set of questions about the parties at the table, for example: What resources do they each have? What are their understandings of the process?

The codes also remain silent on parties who may not be at the table but who are profoundly affected. Indeed, the definition, or framing, of the dispute may well affect perceptions about who the relevant players are. But, again, the codes are silent about who defines a dispute, its parties, and the appropriate resources, including mediation skills and experience and the need for resolution, which each party brings to mediation.

The existing codes of ethics then go on to impose strictures upon the mediator to be neutral, to assure self-determination, and to protect confidentiality. And thereby the ethical problem may be exacerbated. If the codes of ethics are silent on the identity and resources of the parties, for example, and the mediator is at pains to refrain from judgment and remain neutral as to the existing parties, they offer the mediator no opportunity to address basic inequalities or flaws in the definition of the dispute. Moreover, ignoring those earlier moments that shape the process undermines the ability to address these problems systemically rather than on an ad hoc basis (cf. Luban 1989).

For example, in small claims court in Massachusetts, companies go to court to collect bills or otherwise bring suit against their customers. These companies include major department stores, finance companies, or, in one notorious example, automobile towing companies. The companies are “repeat players” and consequently know the system and the law, and often have far greater resources to exploit that knowledge. In mediations conducted before court hearings, pro se consumers often do not know the extent of their rights. Mediators, feeling the obligation to remain neutral, to refrain from giving legal advice, and to ensure that decisions are the parties’ and not theirs, obey the usual ethical strictures as they understand them and stay silent.

A set of solutions to these problems could be designed to focus not on the individual case but on the system. For example, in small claims court, consumers could receive educational pamphlets, they could be represented, or at the negotiation table there could be a consumer ombudsperson or an agent of the attorney general’s consumer protection division. Importantly, if and when such systemic solutions are designed, participants could include representatives of the court, the attorney general’s office, unions, business associations, or consumer organizations.

The particular process or the particular solution is less important here. What matters more is that the existing codes of ethics ignore the opportunities within the dispute resolution process for creating such cures. They exacerbate that neglect by focusing only on the moment at hand and holding the mediator to neutrality between the parties as given. We do not suggest that the individual mediator be solely responsible for the wider social justice questions; indeed, in some instances, provider organizations may be the appropriate locus for remedy. We do suggest that ethical codes should not overlook such concerns and thereby sometimes exacerbate their impact. While it may be a difficult enterprise, ethical practice and the codes that enforce it should find a way to incorporate or relate to perspectives of the other interested players — whether they are at the table or not.

By “grounded ethics” we mean to describe an alternative approach to prevailing ethical thinking in the field of mediation. This approach calls for ethical judgments that are far more contextualized and that would take account of the nature of the disputes, the particulars of what is at stake, the resources and abilities of parties at the table, and the nature of the parties missing from the table. This approach is also “grounded” in the sense that it incorporates conceptions of ethical behavior not only from the perspective of the professional neutral. In part we emphasize this “bottom-up” idea to contrast our approach with the “top-down” nature of much of the ethical codes and even of the critiques of such codes. And we do so also to avoid the categorical thinking that leads to the “easy divisions” described above.

A complete theory of ethical thinking would, in practice, combine “top-down” and “bottom-up” approaches, going back and forth between situation/context and general principles (cf. Nussbaum 1990; Arras and Steinbock 1995). But because the literature on mediation ethics so emphasizes the top-down approach in its analysis and compilations of codes, our approach seeks to provide a corrective balance. Our argument for such a grounded ethics rests on several observations drawn from our practice of mediation as well as our reconsideration of the fundamental tenets of the field.

First, at the very center of much of the practice of mediation is the experience that parties reach agreement despite profoundly different views of the facts, different views of what the norms (or law) that should be or will be applied to their dispute, and profoundly different views of what may happen if they fail to reach agreement. Indeed, that is much of the skill in the practice — finding that which allows each party to reach an agreement on the particulars of a resolution while still holding on to his or her own differing needs, views, or beliefs.⁹

To take this set of insights one step further, it is most often the case that parties to a dispute have far different views of what is holding up a resolution. That is, if they disagree about what the obstacles are to their own successful resolution of the matter they often will also disagree about the appropriate steps for the neutral to take and even about the mediator’s appropriate role. Or the parties may agree upon a role for the mediator, but it is at odds with the usual conception of the mediator’s role. To whatever extent the first tenets of mediation rest upon self-determination — as long as the parties are fully capable of exercising such self-determination — imposing conceptions of the mediator’s role without incorporating the parties’ views becomes problematic.

Second, careful analysis reveals that ethical dictates derived from “top-down” conceptions of the appropriate mediator role undergo remarkable transformation as they are put in practice in different contexts. Thus the dictate that the mediator shall ensure that mediated agreements are the product of the parties’ determinations of their own interests is interpreted in profoundly different ways when parties are represented by counsel or not represented, when what is at stake may be the future financial and psychological health of the members of a family, or when others not at the table (whether possible to bring them in or not) may be seriously affected.

Third, a reflective mediator will reveal that her understandings of the dispute and its potential resolution are steeped in uncertainty. The parties’ own views are necessarily filled with uncertainty — whether about what the future will hold or their knowledge of themselves or others, and rarely do parties share all of their deepest thoughts and strategies with their mediator. So the mediator, too, must work with little certainty about what is holding up resolution and about which of many moves might help unlock the stalemate.

Given this uncertainty, one way of understanding mediation is to observe that a skillful mediator may try a host of techniques, paying attention first to those least likely to cause harm to the relationship between and with parties until one produces progress. With this understanding, the appropriate attitude for the mediator is humility in the face of all that is unknown, including what will be the most productive steps to take and what role to adopt. A priori dictates of ethical behavior then appear to be presumptuous. When these dictates are in conflict with what the parties will find useful and appropriate, they reflect hubris rather than humility. In our conception, ethical dictates should be guided by the particulars, the substance, and the context of the dispute.

Fourth, to derive the dictates of ethical behavior by deducing them from an analytic conception of the proper role of the mediator seems therefore to be a doomed intellectual enterprise. If the debates about the appropriate behavior of the mediator — facilitative or evaluative, transformative or settlement oriented — rest on a priori conceptions of the mediator’s role, there is no way to resolve which role should prevail. We are left only with essentially political or ideological arguments for different conceptions of practice. As is the case with other types of ethical arguments (e.g., Arras and Steinbock 1995), many people will look to test a conception of role against its results in concrete cases — that is, it is the “rightness” of the particular outcomes (although sometimes particular outcomes vary across a range of circumstances) that determines whether that conception should be held or abandoned.

At a minimum then, ethical dictates must be grounded in the context of disputes. And again, in this particular field, if one of the tenets of the appropriate role of the mediator is that she gives weight to the self-determination of the parties, then virtually by definition one must allow for the parties’ own beliefs about the appropriate role for their dispute resolver. Imposing a conception of the ethical mediator upon the parties simply does violence to a first tenet of the field.

Last, at least from the views of the parties as well as from those who are not parties but otherwise affected, ethical considerations of a dispute resolution process may occur well before the mediator arrives on the scene and well after she has left. Who sits at the table, who is affected, and who is not at that table, and the effects of the implementation of the agreement all raise questions that may lie outside a scope of an ethics defined from only the mediator’s perspective. So the ethical dictates of this practice must be grounded by at least incorporating the ethical understandings of those other than the mediator, including the designers and providers of dispute resolution systems.

The premises we have articulated should have profound implications for an ethical practice of conflict resolution. The ADR field cannot take comfort in abstract definitions of the mediator’s role or easy divisions of responsibility and then deduce ethics from those concepts. Moreover, given the young state of the field and its development in many new substantive areas, full ethical codes are not only a long way off, but should be. Artificially imposing them may impede the development of a richer as well as a more ethically sensitive practice.

Given this state of affairs, we suggest three tentative conclusions that may encourage grounded ethical practice. First, the burden of ethical practice cannot fall on the mediator alone. How the mediator gets to the table, what qualifications and resources she brings, who else is there with what resources and expectations, and who is not there cannot be ignored. How to share the burden of these and a host of other questions specific to different contexts will be a complex enterprise, especially as it will vary over different practice areas, but it is a necessary enterprise.

Second, the mediator cannot take comfort in the easy divisions of substantive and procedural justice. She must stay alert to all those moments when seemingly just procedures mask other kinds of injustice. Some of these moments have been widely discussed in the field, such as those instances when substantive inequalities result in a kind of coercion of one party. But others may arise because the limitations of the procedure simply prevent from addressing all justice considerations.

We then have an ethical responsibility to acknowledge what kind of justice is being ignored, what issues are not being resolved, and where, if anywhere, those considerations may be addressed. This in turn implies the importance of an ethical approach that fights the tendencies of denial, that is, selective inattention toward the thornier aspects of a situation. Denial, a normal tendency, can be adaptive and even helpful in some contexts, but it can also deflect attention from some aspects of the context, the parties to conflict, and the mediator’s own role that are germane to the situation and have the potential to significantly affect process and outcome (Opotow and Weiss 2000). Mediators must be clear-sighted about what is left out in their practice or in the resulting resolutions and refrain from giving those resolutions more weight than they deserve.

And finally, our alternative approach suggests a very different course for the development of ethical codes in the field. Our proposal is that the development of the codes, indeed the conduct of ethical debates, must be grounded in particular disputes within particular subject areas. An insight commonly offered by more experienced practitioners is that the difficult ethical questions (usually arising from a fact pattern where two abstract ethical mandates appear to conflict) can be better handled by leavening deductive argument based on principles with effective practice that anticipates and effectively avoids the problem. Push a little on how one does that and the experienced mediator will often relate a deep understanding of the particular context of the dispute. We believe that it is in the exploration of that context, of the understanding of the parties, and of the meaning of effective practice, that the details of ethical principles emerge.