Through the Looking Glass: Exploring the Regulatory-Ethical Ecosystem for Mediation

Abstract

How can we conceptualise a robust regulatory system for mediation without compromising the hallmark qualities of mediation that make it so attractive to users – qualities such as procedural flexibility, maximisation of party interests, party autonomy and high standards of confidentiality?

The chapter begins by recognizing the limitations of conventional positivist approaches to regulating mediation practice. It invites readers to view mediation regulation through a contextual lens that highlights connections amongst law, ethics, policy, professions, organisations, civil society and governments in a relational and dynamic regulatory eco-system. Illustrations of the contextual qualities of mediation regulation are drawn from a range of international sources, including the treaty-drafting sessions of UNCITRAL and diverse legal systems spanning Europe, Australasia, North America and the Middle East.

Building on a structure that identifies regulatory actors, form and content as its core elements, the mediation eco-system is re-imagined, in theory and practice, to embody an ethical dimension as a dynamic part of its regulatory framework.

For a nascent and ambitious mediation profession, this pluralistic and inclusive regulatory approach envisages a sustained collaborative effort by stakeholders to nurture a living framework for ethical practice that mirrors the relational and interest-based values of mediation itself. For institutional and government policy makers, it offers a path to navigate the tension between the need for regulatory robustness, on one hand, and the need for procedural flexibility, and cultural agility, on the other.