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Ethical Issues in Mediation


By: 
Date: May 14 2012

Toronto, ON – May 14, 2012 – The ADR Institute of Ontario (ADRIO) announced today the launch of a new training course to assist alternative dispute resolution (ADR) professionals, mediators and arbitrators in resolving ethical dilemmas they face in the course of their work.
At the crux of the challenge facing ADR professionals is the following dilemma: What is a mediator to do when two or more of the values which govern practice – confidentiality, privacy of parties, neutrality, autonomy, impartiality, self-determination, fairness and justice – come into conflict?
What if the right of the parties to self-determination conflicts with the value of fairness, or what if fairness conflicts with confidentiality? For example, consider the following wrongful dismissal scenario. What if the cash-strapped employee is so emotionally and financially distraught that he or she wants immediate settlement “no matter what”, while the deep pocket employer has disclosed to the mediator, in confidence, a critical piece of information that could completely change the employee’s position?
The mediator is faced with an ethical dilemma. Does he or she maintain the employer’s confidentiality and allow the employee the right to self-determination? Breach confidentiality to ensure fairness? Walk away from the negotiations without saying why? How should such situations be handled to ensure the integrity of the process? There may be no clear “right” or “wrong” answer to these questions, but the new Ethics Course provides a framework or method for consciously making these important decisions.
“Mediators strive to be neutral and impartial while assisting conflicted parties to reach a resolution,” said Joyce Young, President, ADR Institute of Ontario. “Unlike courtroom trials that take place in public, mediation is conducted in absolute privacy. The Ethics Course has been designed to help mediators be cognizant of the competing mediation values at play, and to increase and maintain their awareness of ethical issues during a private and confidential mediation process.”
The course will assist members – professional mediators and arbitrators – to become sensitive, aware and able to skillfully resolve conflicts that emerge as they facilitate complex negotiations between disputing parties.
The ADR Institute of Ontario is an association of mediators and arbitrators and other alternative dispute resolution practitioners. Membership in the organization is voluntary. One of the reasons members join and ADR consumers select ADRIO members, is because ADR is a “self-regulating” profession and the ADRIO provides standards for that regulation. Members must adhere to a Code of Ethics and a Code of Conduct for Mediators which provide some guidance to members in ensuring fair and just process. Selecting a mediator who is a member of ADRIO assures the client that the mediator has committed to these codes and is subject to discipline if there is a complaint or breach. In an effort to strengthen “self-regulation” and in recognition of the challenge mediators face in balancing the competing values, ADRIO has created the course “Ethical Issues and Dilemmas in Mediation and ADR”.
The course is available online and was developed by Elaine Newman, Lawyer, Mediator and Arbitrator, a well-known and highly respected leader in the education of ADR professionals. She is the Academic Coordinator of Dispute Resolution at Atkinson Faculty, York University, and is the former associate director of the LLM program in Labour and Employment Law at Osgoode Hall Law School.
“The objective of ethics training is to provide the practical tools necessary to assist the reflective mediator to increase his or her awareness of the issues in a case,” said Elaine Newman. “The Code of Ethics governing members of ADRIO will be strengthened when paired with focussed, interactive training of mediators through this course.”
How the course works:
  1. Materials have been gathered that have been identified as required reading and made electronically accessible – world renowned authors have been interviewed on camera, to help bring the concepts alive for the learner.
  2. The learner examines the mediation values of confidentiality, privacy, neutrality, autonomy, impartiality, self-determination, fairness and justice and determines which values he or she thinks are most important.
  3. Then they are presented with various fact situations where these values come into conflict. In deciding the case, they must choose between competing priorities. He or she then assesses “priorities in theory” against his or her “priorities in practice”. The learner’s own “ethical blueprint” is repeatedly challenged by additional fact situations, and the student is invited to consider and perhaps revise his or her thinking.
  4. Finally, they are provided with a list of practical working tips that will bring ethical dilemmas, and the importance and implications of mediator choices, to the forefront of their thinking.
With the introduction of this Ethics Course, the ADRIO is ensuring and encouraging enhanced professionalism and adherence to best practices. New members and those applying for designations will be required to take the course. Existing members will be encouraged to take it and the Institute’s Board of Directors, comprised of some of the most seasoned professionals in Ontario, plan to take the course.
About the ADR Institute of Ontario
The ADR Institute of Ontario is an association of Mediators, Arbitrators and other ADR practitioners. The Association sets training standards, awards and continues to raise standards for professional designations (Chartered Mediator, Chartered Arbitrator, Qualified Mediator) and provides professional development activities, newsletters and journals to its members. Members are provided with a regulatory structure that includes a Code of Ethics, a Code of Conduct for Mediators and a discipline process. ADRIO provides a united voice in matters relating to government activity and advocacy in all matters relating to the practice of Alternative Dispute Resolution in Ontario, for all forms of conflict. Most recently ADRIO was part of a group that successfully advocated for Family Information Sessions and a Mediator in every Court in Ontario. ADRIO assists the public in locating an ADR professional on line that is best suited to their needs through ADR Connect (www.adrontario.ca). Specialists can be located in the following fields: Family Mediation and Arbitration, Estates, Workplace, Construction, Restorative Justice, Business, IT and IP, Real Estate and Property, Commercial, Contract, Community, Health Care, Education, Sports, Environment, Insurance, International, etc. The ADR Institute of Ontario is one of six affiliates of The ADR Institute of Canada, Inc. (ADR Canada), a non-profit organization that shares information, promotes ideas for continuous improvement and upgrading of ADR as a profession.



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