Trick or Treat: The Ethics of Mediator Manipulation

Dispute Resolution Magazine (American Bar Association), Vol. 18, p. 18, Fall 2010

5 Pages Posted: 9 Sep 2011

See all articles by James Richard Coben

James Richard Coben

Hamline University School of Law; American Institute for Economic Research

Lela P. Love

Yeshiva University - Benjamin N. Cardozo School of Law

Date Written: September 9, 2011

Abstract

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.

Keywords: mediation, ethics, justice, confidentiality, professional conduct, self-determination, neutrality

Suggested Citation

Coben, James Richard and Love, Lela P., Trick or Treat: The Ethics of Mediator Manipulation (September 9, 2011). Dispute Resolution Magazine (American Bar Association), Vol. 18, p. 18, Fall 2010. Available at SSRN: https://ssrn.com/abstract=1921567

James Richard Coben (Contact Author)

Hamline University School of Law ( email )

1536 Hewitt Avenue
Saint Paul, MN 55104-1237
United States

HOME PAGE: http://law.hamline.edu/james-coben.html

American Institute for Economic Research

PO Box 1000
Great Barrington, MA 01230
United States

Lela P. Love

Yeshiva University - Benjamin N. Cardozo School of Law ( email )

55 Fifth Ave.
New York, NY 10003
United States
(212) 790-0365 (Phone)
(212) 790-0205 (Fax)

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