Trick or Treat: The Ethics of Mediator Manipulation
James Richard Coben
Hamline University School of Law
Lela P. Love
Yeshiva University - Benjamin N. Cardozo School of Law
September 9, 2011
Dispute Resolution Magazine (American Bar Association), Vol. 18, p. 18, Fall 2010
Much of what good mediators do can be characterized as “helpful interventions” that assist the parties towards legitimate goals such as a better understanding, a platform for developing options, and (where the parties choose) an agreement or settlement. However, all such “helpful interventions” are inevitably "manipulative," in the sense that the mediator is, often unilaterally, making “moves” with profound impact on the parties’ bargaining. To evaluate the ethics of any individual move, the authors propose asking two questions: 1) does the move further or help a legitimate party or process goal that advances party self-determination in decision-making; and 2) is the move manipulative in such a way that it disadvantages one side or undermines the integrity of the mediator or the mediation process. The more “secret” or hidden the intervention, the more problematic it becomes.
Number of Pages in PDF File: 5
Keywords: mediation, ethics, justice, confidentiality, professional conduct, self-determination, neutrality
Date posted: September 9, 2011
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