Some Ethical Issues Surrounding Mediation

Abstract

A progressively larger portion of social ordering occurs through mediation. Lawyers are often involved in mediation. From one perspective, mediation is simply facilitated negotiation. Thus the issues that pervade the ethics of negotiation reappear in the context of mediation without much change.

Mediation, however, promises much more than facilitated negotiation. "Transformative mediation", now widely practiced, aims not primarily at maximizing outcomes, but at the moral transformation of the parties. This form of mediation poses much more fundamental questions about legal ethics and the lawyer's role. These questions implicate the general morality of legal and political discourse and the interrelationships of the moral, legal, and political spheres.