University of Florida Law Review
The purpose of this article is to encourage legislators, practitioners, academics, and others concerned with this issue to reflect on this fundamental question before making a commitment to any specific set of standards: What general conception of the mediation process and the mediator's role should govern that set of standards? Specifically, I challenge the reader to resist adopting what seem to be the two currently prevailing conceptions of the mediator's role. I argue instead for a conception based on traditional mediation theory and practice, and implied in recent state legislation. Part II of this article identifies two current conceptions of the mediator's role. While both are popular among their respective constituencies, both are fundamentally flawed. According to the first, the mediator's role is to facilitate agreements in as many cases as possible, thus obviating the need for trial in court. According to the second, the mediator's role is to ensure that neither party's rights are compromised in the settlement process. The first I refer to as the efficiency conception, and the second as the protection-of-rights conception. This article explains why neither conception is coherent, and why neither is a sound basis for mediator standards. In Part III, I argue in favor of a third, sounder conception of the mediator's role - the empowerment-and-recognition conception. According to this conception, the mediator's role is neither to promote agreement nor to protect rights per se. Instead, the mediator's role is to encourage the parties' exercise of their autonomy and independent choice in deciding whether and how to resolve their dispute, and to promote their mutual recognition of each other as fellow human beings despite their conflict. Part IV explores how this third conception would guide us in choosing, and rejecting, specific mediator standards. The concrete focus of this article, particularly the final section, is on the impact of the conception of the mediator's role on standards of ethical mediation practice. Moreover, this article focuses on the mediator's role and responsibilities as mediator, regardless of whether the mediator is a professional who occupies other roles as well. For, whatever other professional ties bind them, mediators occupy a unique role which they are ethically obligated to understand and fulfill. This role, and the responsibilities that accompany it, are the concern of this article.
Robert A. Baruch Bush,
Efficiency and Protection, or Empowerment and Recognition?: The Mediator's Role and Ethical Standards in Mediation, 41 U. Fla. L. Rev. 253
Available at: http://scholarlycommons.law.hofstra.edu/faculty_scholarship/652