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The Construction of Ethics in
Mediation

Leda M. Cooks, Claudia L. Hale

This article explores the discursive construction of ethics as the product

of professionalguidelinesfor behavior and as the process of telling sto-
ries about moral dilemmas. First, the authorsfocus on five codes of con-
ductfor mediators and identify disputant self-determination, informed
consent, mediatorimpartiality, and mediator neutrality as central themes
in each of these documents. Second, they examine the tape-recorded
remarks of participantsin a seminar dealing with fairness, socialjustice,
ethical concerns, and the responsibility of mediators to address these con-
siderations. The four themes identified in the codes of conduct are shown
to delineate the grounds on which ethical concerns were addressed by the
seminarparticipants.

We live in a paradoxical time, when conflicts and differences are defined as the
"failures to communicate" of individuals in a competitive and litigious society
that emphasizes winning as opposed to simply maintaining harmony in rela-
tionships. Frustrations with the antagonistic nature of the legal system and the
expense involved in taking a case to court have led many people to try medi-
ation as an alternative form of dispute resolution. Through mediation, those
involved in a dispute can find a constructive and mutually satisfactory
approach to managing their disagreements. The practice of mediation empha-
sizes employment of problem-solving skills and, in most instances, preserva-
tion of the disputants' relationship, rather than the "defeat" of an "opponent."
The flexibility of the mediation process, differences in the types of medi-
ation services available, and variations in requirements and credentials for
mediators have led many to call for increased regulation and codes of conduct

Note: For the study reported here, we gratefully acknowledge the contributions of the par-
ticipants, organizers, and faculty involved with the Hewlett Socio-Legal Institute on Dis-
pute Resolution, sponsored by the Center for Socio-Legal Studies at the Ohio State
University College of Law. Their graciousness in allowing us to draw from class discussions
for the purposes of this article as well as the valuable role that the seminar played in stim-
ulating our own thinking on a variety of mediation-related issues are deeply appreciated.

MEDIATION QUARTERLY, vol. 12. no. 1, Fall 1994 C Josscy-Bass Publishers 55

56 Cooks, Hale

for mediators (for example, Bush, 1992). Indeed, ethical concerns about the
form, content, and process of mediation have increased proportionately to the
growing popularity of mediation and to the variety of services that volunteer,
court-appointed, and professional mediators are capable of offering.
Bearing these concerns in mind, we argue that recognition of the discur-
sive construction of mediation should be at the center of any attempt to define
a set of ethics or, at the very least, central to the explication of the ethical
dilemmas extant in mediation. The term discursive construction refers here to
the interactions and communicative challenges that define and describe the
process of mediation for the parties (disputants and mediators alike). These
interactions and communicative challenges constitute the reality of the medi-
ation process, at least for the participants, and thus define the ethical accom-
plishment of a mediation.
Although previous research (for example, Cue, 1987; Donohue and Bres-
nahan, 1994) has applied communication codes to a generalized picture of
mediation, we posit that adoption of a true communication perspective
involves taking a closer look at how the qualities of ethics, justice, and fairness
are created within situated discourse. In this article, we examine the ways in
which these concepts were (re)constructed at the Hewlett Socio-Legal Institute
on Dispute Resolution, a seminar that brought lawyers and academics together
in a search for an integrated perspective on the nature of alternative dispute
resolution. The purpose of the seminar, held June 13 through July 2, 1993,
was to examine, from legal and social science perspectives, current issues
affecting dispute mediation. Our primary concerns in this analysis are the ways
in which the discussions about fairness and ethical considerations of the medi-
ation process proceeded and the knowledge (stories) that preceded these dis-
cussions. With the perspectives of Habermas (1983) and Pearce (1989; Pearce
and Cronen, 1980) as critical foundations, we examine how a group of pro-
fessionals from differing fields made sense out of what were or were not
described as ethical dilemmas. What defined the questions that were, or were
not, asked about justice in the situations examined?

Placing Ethics in Context

Ethical considerations raise important questions not only about mediator
responsibility but also about the meaning of mediation. Of fundamental con-
cern is the question, Should mediation continue to serve the purpose for which
it was originally intended (as a voluntary alternativeto the legal system)? Increas-
ingly, disputant involvement in mediation (at least in the sense of making an
appearance at a mediation session) has been instituted as an obligatory part of
small claims or civil court processes. Along with the institutionalization of this
mandatory mediation has come escalating pressure on those persons adopting
the title of mediator to become licensed (in some sense) and to register as part
of a professional organization. Hidden or.disguised within some of these
The Construction of Ethics in Mediation 57

developments are questions concerning the "alternative" nature of mediation:

Alternative to what? In what senses is mediation an alternative? And in what
ways do moves to establish education credentials for mediators (including
requirements for advanced academic degrees) put the notion of alternative at
risk?
The growing adoption of alternative dispute resolution in the judicial sys-
tem of the United States will no doubt lead to greater pressure on community
centers to legitimate their practices and training programs and to reach settle-
ments as part of the documentation of success requisite for funding. Adding
to the perceived need for standardization are increased regulation of mediation
by federal, state, and local governments and the need for mediation profes-
sionals (and even community volunteer agencies) to generate income. Regard-
less of the outcome of the current stress on standards, the ways in which those
who study the field-those who teach, research, and practice mediation-
define ethics and discuss ethical dilemmas are of tremendous importance to
the construction of a discourse concerning moral behavior.
At least partially in response to the growing interest in the discourse of
conflict and mediation, communication studies in this area have become pop-
ular within the past decade. There is a common image among many in the
fields of mediation and communication that communication scholars can
somehow provide the missing link between intention and interpretation (that
is, between the message one person "meant" to convey and the message inter-
preted by the other person). While the communication field has yet to offer a
prophetic vision that will dissolve misunderstanding and while communica-
tion scholars themselves disagree as to what should comprise a communica-
tion theory of mediation, some attempts have been made to form a
communication perspective on the processes of conflict, negotiation, and medi-
ation (for example, Donohue, 1990; Folger, 1991).
Researchers who examine mediation often use interpretive or structural,
or both, approaches. Within these research frameworks, examinations of
conflict styles and strategies have dominated, often leading to static conceptu-
alizations of communication and, perhaps more important, static conceptu-
alizations of the struggles over the meanings of concepts such as "justice,"
"fairness," "equality," and "truth." Even worse, communication is often under-
stood as a subset or "tool" of mediation and thus is represented as a means
through which some higher purpose (perhaps the purpose of relational har-
mony) is achieved. In other words, communication is thought of as something
that occurs apart from the ongoing construction of meaning, rather than as the
"mediation" of ethical processes themselves.
The conceptualization of communication as a tool parallels the means-
ends epistemology of moral and ethical (ultimately, social) choices. By contrast,
we argue that communication is both the means and the ends of social (moral
and ethical) interaction. Mediation should not be defined and studied only as
a product of misunderstandings between multiple interactants, that is, as a site
58 Cooks, Hale

for individuals to discover the "correct" way of interpreting one another's state-
ments and actions. Nor should mediation be examined only as a means for
achieving mutual understanding and respect. Such an approach is problematic
in that the emphasis is on the end product with little or no acknowledgment
of the ongoing nature of negotiated understandings. Rather, mediation should
be examined as a process with possibilities for coordinating the various mean-
ings that humans give to their lives.

Ethics and the Communication of Moral Choice

Our study here is an analysis of the stories told about ethics in the context of
mediation. First, we frame the study of discursive ethics according to Haber-
mas's (1983) notion of a participatory community that defines moral action.
According to Habermas, the construction of ethics is never simply a discourse
of "mind" (the reflexive observations of the brain) but is, instead, the recon-
struction of experience among a community For Habermas, the process of
sense making and moral interpretation cannot be grounded in empiricist the-
ories of what one ought to do, precisely because these theories are isolated
from context and the socializing processes of everyday life. Habermas does not
imply that ethics exist apart from social and cultural norms, rather, his argu-
ment is, in part, that the existence of social and cultural norms cannot be taken
to mean that there is a single, indisputable basis for external, "rational" judg-
ments of behavior.
The distinction here is between an ethics that supposes a means-ends
relationship based on a universal notion of "good" behavior and what
Habermas calls the moral-practicaljustification for actions grounded in emo-
tions that are embedded in specific practices. Habermas (1983, p. 50) noted
that "feelings seem to have a similar function for the moral justification of
action as sense perceptions have for the theoretical justification of facts."
Particular beliefs about (who violated what) norms of behavior that bring
disputants to mediation become relevant only to the (re)configuration of
events. What becomes important in the moral-practical view is not the
determination of the "right" way to act (which excuses personal experiences
in favor of what ought to occur) but rather the reasons given and the
choices made in acting.
Extending the notion of the performance of moral action, Pearce (1989)
believes that coordination in the process of storytelling is necessary for the pur-
poses of communication. Pearce refers to stories as "action plans" for coordi-
nating meaning among people. Our analysis of the discussion of ethics in the
Hewlett seminar builds on Pearce's notions of coordination and coherence as
important frames. For Pearce, coordination does not imply agreement or even
understanding. Rather, coordination is an imperfect attempt to bring together
two (or more) divergent constructions or visions of meaning and events. Coor-
dination is imperfect because human beings make numerous choices in
The Construction of Ethics in Mediation 59

creating and interpreting the stories of their lives. Pearce (1989, p. 59) stated
that "coordination is inherently difficult in human communication because the
meaning of messages is determined by their enmeshment in various moral
orders whose content cannot be assumed to be either constant or commensu-
rate with each other."
From this perspective, disagreements emerge when two people become
enmeshed within divergent ethical stories. The role of the mediator is to help
the disputants coordinate their meanings: to assist in creating a story com-
mensurate with each person's goals and to help each party make sense of the
other person's story. For mediators, the objective is to restore a moral and eth-
ical order apart from the disputants' experiences of their particular set of mean-
ings. The ethical dilemma becomes one of "professional" obligations ("Am I
ensuring the rights and living up to the obligations of the standards of media-
tion?") exercised in the context of attempting to make sense of individual sto-
ries while looking for joint (common) vocabularies and possibilities.
The ongoing dialectic between coordinators is, for Pearce (1989), part
of the larger attempt to match communication with the belief system of each
disputant. Pearce defined coherence as the process of making the world
"readable" through the stories that we tell. Coherence is part of the sense
making of social construction. Pearce emphasized the forms that the stories
take rather than the content of those stories. This focus on forms highlights
the options available to the storyteller, and the degree to which the story and
the storyteller are enmeshed in a particular telling of an old (familiar) story
or a new story is created from remnants of the old. For disputants within a
mediation, coherence means that the communication makes sense within
their own particular systems of beliefs. For mediators, coherence involves
the suspension of their own sense making in an attempt to appreciate the
sense making of the disputants and assist them in coordinating their story-
telling with each other.
This application of the notions of coordination and coherence borrows
heavily from the coordinated management of meaning (CMM) theory of com-
munication (Cronen, Johnson, and Lannamann, 1982; Cronen, Pearce, and
Snavely, 1979; Pearce and Cronen, 1980). The research in this area has focused
on the speech acts defining a communication episode as desirable or undesir-
able and the behaviors that reinforce these interpretations. Our analysis uses
the idea that communicators, in their efforts to coordinate the stories they are
telling with the stories already told (about conflict, ethics, and mediation), con-
struct paradoxical interpretations. A paradox, according to CMM, occurs when
an interactant contradicts his or her sense of coherence and must make adjust-
ments because of those contradictions. Thus, our analysis focuses both on the
stories told (coherence) and on the storytelling (coordination). Our interest is
in the kinds of discursive moves that lead discussions about ethics and ethical
dilemmas toward an assertion of power (in the best interests of the disputants
and in marking the territory of the mediation field).
60 Cooks, Hale

Procedures
Our project began with an examination of five codes of conduct for media-
tors. While not the subject of analysis and discussion by members of the
Hewlett seminar, these codes nonetheless represent formalized efforts by
various segments of the mediation community to describe and dictate appro-
priate behaviors for community members (that is, dispute mediators). As such,
they serve as a fitting (and important) starting point in our attempt to describe
the themes of the stories told about the ethical practice of mediation. In our
attempt to identify those themes, we employed, as criteria, the particular situ-
ations (dilemmas) that are common across these documents and the language
(such as "informed consent") brought from other fields to the context of medi-
ation. Our thematic analysis of these documents is an attempt to situate the
seminar discourse as part of an ongoing conversation among those who have
an interest in mediation. In situating the seminar conversation as a discussion
where the various belief systems of the participants converge into a new sense
making at a particular point in history, we attempt to (re)create the commu-
nicative ethics coordinated in this speech situation.
The second stage of our analysis centers on two tape-recorded, transcribed
sessions of the Hewlett seminar. These sessions dealt specifically with the con-
cepts of fairness, ethical considerations for mediators, and social and proce-
dural justice and responsibilities inherent to the mediation process. Our
interest is in the coherent sets of beliefs concerning conflict, justice, fairness,
and mediation that were revealed within the stories that were told and the par-
ticipants' reactions to these stories. We are interested in the ways in which
mediators defined these terms (conflict, justice, fairness, and mediation), apart
from the context of mediation. How do the seminar participants' stories about
the meanings of justice and fairness speak to their responsibilities as profes-
sionals and their responsibilities, as mediators, to a profession? To what extent
do their stories reflect the communication situation of mediation, that is, the
process of negotiating meanings among multiple parties engaged in a particu-
lar speech act?

Analysis: Standards of Practice for Mediators

The number of professional organizations that have either developed or joined
other groups in subscribing to a set of ethical standards is quite large. Recently,
the American Arbitration Association, the American Bar Association (ABA),
and the Society of Professionals in Dispute Resolution (SPIDR) created a joint
committee charged with the responsibility of drafting a statement that
describes "the standards of conduct for mediators of all types of mediations"
(Feerick, 1993). Gail Padgett (1986, p. 9), as chair of the Ethics Committee
for SPIDR, provided an argument in favor of efforts of this nature, noting that
"the [SPIDR Ethics Committee] hoped that the standards would be adopted
The Constructionof Ethics in Mediation 61

and respected, thereby making unnecessary further regulation by local, state,

or federal governments, legislatures, or jurisdictions." Other commentators (for
example, Albie Davis, James Laue, and Nancy Rogers), while not viewing these
standards as "necessary," have nonetheless described them as helpful, especially
for practitioners who are new to the "discipline" of mediation.'
For this research, the "standards of practice for mediators" of five different
groups were examined.2 Overall, these sets of standards are more in agreement
than in disagreement. In fact, at a variety of places, the language used within
the various documents is virtually identical. In almost every case, the standards
begin with a preamble that defines mediation and establishes the core con-
structs that constitute the value system of the mediation process. Typically,
emphasis is placed on a qualified, impartial, third party who guides consent-
ing parties through the process of reaching a mutually satisfactory agreement.
At the heart of the various standards-of-practice documents are the notions
of disputant self-determination, informed consent, mediator impartiality, and
mediator neutrality The fact that these four themes constitute cornerstones of
the ethical practice of mediation belies the presence of disagreement and para-
dox. They are, in many respects, intricately tied to one another (and to other
aspects of the various standards of practice, for example, confidentiality and
good-faith bargaining). The centrality of the themes certainly speaks in favor
of attempting to develop an understanding of what is involved with each and
the difficult challenges that each poses for a mediator.
The concept of self-determination appears time and again within the doc-
uments both as part of the definition of mediation and as part of the guidelines
for mediators. In almost every instance, mediators are reminded that the
essence of mediation is embodied in disputant self-determination. It is in self-
determination that mediation is distinguished from virtually all other third-
party approaches to conflict resolution. The paradox, as described by Grebe
(1992), is that while all the documents are unanimous in insisting on self-
determination, they are equally unanimous in stating (1) provisions that
encourage mediators to recommend independent legal counsel for disputing
parties and (2) provisions that speak to the responsibility of a mediator to pre-
vent, or to recuse himself or herself from, agreements that are "not fair."
Grebe (1992) argued that mediation, as a process, has little point if the
parties are not allowed to make their own decisions; however, provisions such
as those just cited elevate the judgment of third parties above that of the dis-
putants. On the one hand, we have a process (mediation) whose underlying
theory involves "the acceptance of human beings as rational, problem-solving
entities" (Grebe, 1992, p. 159). There are any number of provisions within the
various standards documents that support that position, cautioning mediators
against coercive tactics. On the other hand, we have mediators cautioned about
their responsibility to ensure that mediation does not "harm," 'prejudice," or
"disadvantage" any of the parties (with mediators required to employ their own
standards in judging such situations).
62 Cooks, Hale

While not always accorded the same stature or emphasis as self-determina-

tion, the construct of informed consent (that is, the extent to which the partici-
pants in the process are cognizant of and fully understand the choices available
to them) is, nonetheless, equally important in defining the essence of mediation.
Informed consent is typically introduced within the preamble of each document.
In a variety of statments, mediators are cautioned about their responsibilities with
respect to describing the process to the disputants, ensuring that the disputants
understand what will (and will not) occur, and determining that the disputants
fully appreciate the nature and provisions of any agreements that are reached.
In some respects, the concept of informed consent seems fairly straightforward
and simple. However, a statement contained in Proposed Standards of Conduct
drafted by the Joint Commission on Standards of Conduct points to at least
some of the difficulties of the concept of informed decision making. Specifically,
there is a recognition that "a mediator cannot personally ensure that each party
has made a fully informed choice to reach a particular agreement." Nonetheless,
the mediator is charged with the responsibility of ensuring that the disputants
understand the importance of making informed decisions.
What is not addressed are questions concerning the level or type of infor-
mation (about the mediation process or about other issues relevant to the dis-
pute) needed by any particular disputant. How much information does a
disputant need in order to be considered "informed"? What should a disputant
be told (about the mediation process, about other alternatives, about matters
relevant to the dispute)? Who should be responsible for providing that infor-
mation to the disputant? What responsibility does the disputant have in seek-
ing needed information? The simplicity of the questions masks the difficulties
that arise when comparing answers that seem appropriate in one context (for
example, divorce mediation) with answers that are appropriate in another con-
text (for example, labor-management mediation).
Another problem area has emerged (or intensified) with the adoption of
mandatory participation in mediation as part of the conflict management
"package" in a variety of arenas. The concept of informed consent is typically
presented as underscoring the voluntary nature of the mediation process and
constituting the embodiment of self-determination. Part of the informing that
is to occur concerns the right to withdraw from the process and to seek other
means (such as adjudication) for resolving the conflict. However, the very fact
that in some situations the disputants' involvement in mediation was not by
personal choice but was, instead, the result of a court or legislative dictate
would seem to undercut the notions of voluntariness, self-determination, and
informed consent.' This is potentially true even though the mandate does not
extend so far as to encompass agreeing to any proposals that might be put for-
ward or even fully and enthusiastically participating in the mediation process.
The remaining two cornerstones, mediator impartiality and neutrality, are
treated in at least some standards documents as though they are synonymous
terms. However, they can (and, perhaps, should) be distinguished from each
The Construction of Ethics in Mediation 63

other. The concept of impartiality appears to have garnered the greatest level
of agreement and support. The Colorado Council of Mediation Organizations
(CCMO, 1992), SPIDR (1987), National Association of Social Workers
(NASW, 1991), and Academy of Family Mediators (AFM, 1985) standards all
define impartiality as involving "freedom from favoritism and bias in either
word or action." With some minor variations in phrasing, the definitions con-
tinue from that point to insist that "impartiality implies a commitment to aid
all parties, as opposed to a single party, in reaching a mutually satisfactory
agreement." In order to subscribe to the dictate of impartiality, a mediator must
refrain from acting as an advocate or assuming an adversarial role.
The exception, assuming there is one within the scope of the various ethics
statements, might lie within the notion of advocating the mediation process
itself. Virtually all of the documents speak to the need for the mediator to clar-
ify what is involved in the process of mediation and to determine whether
mediation is the correct approach for the disputes presented. Given the
increasing probability that the parties will arrive at mediation through a court
mandate (see, for example, Cohen, 1991; Goldberg, Sander, and Rogers, 1992;
McEwen and Milburn, 1993), the door would seem to be open for a mediator
who is capable of serving as an advocate of the process. The question that
arises here is whether any advocacy, even if in support of the process, risks vio-
lation of the dictates of impartiality
The concept of neutrality is more problematic. The SPIDR (1987) stan-
dards do not specifically define neutrality; instead, mediators are simply
referred to as "third-party neutrals." With respect to the CCMO (1992), NASW
(1991), and AFM (1985) standards, neutrality involves the relationship of the
mediator to the disputants or the issues, or both, involved in mediation. These
documents advise mediators that they should "have no relationship with par-
ties or vested interests in the substantive outcome that might interfere or
appear to interfere with the ability to function in a fair, unbiased, and impar-
tial manner" (NASW, 1991).
Problems with the concept of neutrality emerge in two ways. First, in com-
parison to the pronouncements of other groups, the ABA (1984, p. 457) stan-
dards assert that "impartiality is not the same as neutrality While the mediator
must be impartial as between the mediation participants, the mediator should
be concerned with fairness [emphasis added.] The mediator has an obligation
to avoid an unreasonable result." So, for the ABA, while a mediator has an
obligation to be impartial, a mediator is also responsible for ensuring that the
final agreement is fair, even if nonneutrality is necessary in order to accomplish
that goal. This position is in obvious contradiction with the positions espoused
in other standards documents.
Second, as described by Rifkin, Millen, and Cobb (1991, p. 151), there is
almost no research concerning "how neutrality can be 'practiced' for the facil-
itation of agreements." The paradox facing any mediator is how to maintain
impartiality while simultaneously assisting the parties (whose relationship
64 Cooks, Hale

might be characterized by a power imbalance or who might be quite poor in

their communication and conflict management skills) in expressing their
"sides" of the conflict. Rifkin, Millen, and Cobb (1991, p. 153), used the idea
of the "strange loop" in CMM theory to explain that "the paradox of neutral-
ity . . . is based on an interactive sequence consisting of contradictions. The
sequence consists of four steps, each one logically leading to the next, where
the fourth step returns directly back to the first step." Within the four steps
posited by Rifkin, Millen, and Cobb, mediators must somehow negotiate the
competing expectations that they will conduct themselves (and the mediation)
in an impartial manner, not favoring or supporting either party, and at the same
time assist each party in his or her effort to articulate his or her position. This
latter quality (referred to as "equidistance") can result in mediator actions that
contradict the demands of impartiality. Rifkin, Millen, and Cobb (1991, p.
153) draw on the work of Kolb in arguing that "in contrast to impartiality,
where neutrality is understood as the ability to suspend judgment, equidis-
tance is the active process by which partiality is used to create symmetry."

Analysis: Discussions About the

Ethical Performance of Mediators
In light of the standards reviewed above and some of the problems represented
in defining an ethical standard for mediators, we now turn to our analysis of the
two transcripts of the Hewlett seminar. Our analysis employs the concepts of
coherence and coordination in tying together the (often contradictory) stories
about appropriate ethical moves both in mundane and in difficult mediations.
Participants. The participants in the tape-recorded discussions were "stu-
dents" in a three-week seminar that brought together approximately twenty-
five to thirty professionals in the social science and legal fields for the purposes
of teaching and researching mediation. These students were lawyers, media-
tors, law school and college professors, former judges, university administra-
tors, graduate and law school students, and social services professionals. All of
the participants had some background in mediation, although the types and
levels of experience varied greatly The participants ranged in age from twenty-
five to seventy years. They held a wide variety of professional positions in areas
such as social work, law, and communication and had taught everything from
law to elementary school classes. The moderators for the discussions were lead-
ing researchers in the field of mediation, each having contributed in significant
ways (directly and indirectly) to the various codes on standards and practices
followed by mediators throughout the country
Ethical Procedures, Dilemmas, and Storytelling. Our analysis of the sto-
rytelling about fairness and ethical considerations for mediators centers around
a videotape that was a focus for discussion at the seminar. The video-
tape involved a landlord-tenant dispute, where the male landlord was the
complainant demanding overdue payment of rent from a female tenant. The
The Construction of Ethics in Mediation 65

tenant responded that the apartment was in need of significant repairs and that
she should not have to pay the rent until those repairs had been made and,
moreover, could not pay at that time. As the videotape progressed, it appeared
that the tenant was concerned for her safety given the possibility of a physical
confrontation with the landlord. The landlord, who expressed a great deal of
hostility, had allowed this tenant to go several months without paying rent and
was not demanding full payment or else the tenant would be evicted. The
situation was complicated by the level of emotionality (fear of the tenant, anger
of the landlord) that each disputant brought to the mediation. An additional
complication was that the court-appointed mediator had previously mediated
another dispute involving this landlord.
Given this scenario, our analysis of the seminar discussion is four times
removed from the actual context of the disagreement. That is, the participants
in the videotape (produced by the American Arbitration Association) first expe-
rienced the conflict in their real-life relationship and then recreated their sto-
ries for the mediator, who, in turn, provided his own interpretation. The class
attending the seminar then relocated the story in terms of their hypothetical
participation in this "ethical dilemma" and constructed a discourse around how
this dilemma could be dealt with both procedurally and systematically. Our
analysis of this discussion attempts to identify both the primary concerns that
emerged as the seminar participants discussed their assessments of the video-
taped mediation and the "framing" of those concerns that emerged in the ques-
tions, comments, and summaries provided by the seminar moderators.
Framing Procedural Fairness: Informed Choice. In the initial moments of
the videotaped mediation, the mediator introduced himself and acknowledged
that he had served as mediator for the landlord in a previous dispute. After
acknowledging this fact, the mediator turned to the tenant and asked whether
she would be more comfortable with someone else serving in the role of medi-
ator. At this point, the moderator for the seminar discussion stopped the video-
tape and allowed seminar participants to react to what they had just witnessed.
Several concerns were immediately voiced. Primary among the concerns
noted were issues involving the amount of information provided so that each
disputant could make a "reasoned" decision (that is, exercise informed con-
sent) concerning the fairness of the mediation process and, specifically, the
involvement of the particular individual serving as mediator. A male law school
professor (P1) stated that "[my concern] is that [the mediator] didn't tell the
woman enough [about the previous mediation] for her to have made a good
decision as to whether [engaging in the mediation] was okay or not." The mod-
erator (M), a law school professor and researcher in mediation, framed this
concern in terms of a necessary and sufficient proof of fairness.

M: So your definition of fairness, then, [would be violated] if there was not

an informed choice made as to procedure.
P1: Right.
66 Cooks, Hale

M: You're defining fairness by informed choice, not just choice.

P1: Right, especially about the procedure itself, about whether to engage in it.

Other participants then expressed their concerns that the procedure should
be fair to both disputants. As one labor-management arbitrator (P2) observed,

P2: I'm concerned about what Pl said, but in addition to that, [the media-
tor] gave the option [of requesting a different mediator] to the woman.
He did not ask the gentleman if there were any problems with his per-
spective, because of the previous mediation....
M: So it's a balanced procedure that all options be offered to both.

Here, concerns about the power of information, the need for equality in pro-
cedure, and the need for the mediator to maintain a position of neutrality (with
respect to his symbolic positioning between the disputants) are all raised as
legitimate problems. The moderator frames the dilemmas as fairness issues,
either explaining the participants' comments as being about fair procedure or
asking the participants to state a fairness concern. There is an implied recog-
nition of a power imbalance, with the initial comments pointing to the tenant
as the less powerful participant and the second set of observations entertain-
ing the possibility that the mediator's actions in not offering the same options
to the landlord serve to disempower the landlord.
A further complication in determining the "standard" mode of operation
in this situation was presented by a lawyer-mediator (P3):

P3: Well, another thing that goes back to P1's case, if [the mediator] is an
attorney, for instance, he's got some confidential information potentially
[from the previous mediation] and if he's not given consent to disclose
it, which he needs to do in order to be able to give the information that
I want the woman to have to make her decision about whether to go
through this.
M: It could even be more complicated than it appears.
P4: Yes, yes . . . they should have warned her in some sort of communica-
tion beforehand.
M: And so the concern is that you put her in an awkward spot in the mid-
dle. So your definition of fairness would be one of a balance of power
rather than a power imbalance.

In other words, at least for P3 and P4 (law professor-mediator), this situation

presents a complex of untenable choices, each putting the fairness of the
process at risk by inviting (as defined by the discussion moderator) a power
imbalance. The answer, as dictated in a variety of the standards documents (for
example, NASW 1991; AFM, 1985) is that the mediator should recuse him-
self from this mediation; however, Coulson (1988) and (albeit focusing more
The Construction of Ethics in Mediation 67

on the mediator-therapist dual role) Dworkin, Jacob, and Scott (1991) are
among those who raise questions concerning the practicality and appropriate-
ness of such a response.
A female law school professor and mediator (P5) built on the procedure
used to address this issue in the videotaped mediation. Her concern was less
with the existence of a prior relationship than with the manner in which that
relationship and the mediator's involvement in both mediations were revealed:
"[The mediator] asked her in front of [the landlord], so that puts a different
kind of pressure on her, in terms of how she responds, and what does he think
about her saying no. So maybe there would be a better way to do it, one-on-
one perhaps instead of one in front of the other." Again, the moderator framed
her concern in terms of fairness: "So your definition of fairness is a lack of pres-
sure to settle."
At this point, the discussion came back to the definition of mediation as a
voluntary process when the reality of the videotaped mediation was that the
participants had been coerced into attending as part of a court procedure. Even
though that order did not (and court orders in general do not) extend so far as
to dictate full cooperation, let alone agreement with or commitment to any
proposals that might emerge, the psychological reality of mandatory partici-
pation was not treated as problematic. The contradiction between the concerns
addressed in the coercive situation of court-ordered mediation and the pro-
fessional discourse of mediation ethics did not become part of the seminar dis-
cussion (at lest not at the point in time examined here). The moderator did not
address the implication that the process (defined as coercive) is somehow not
subject to the same fairness concerns as voluntary contexts. Instead, in com-
menting on who the mediator was, the moderator simply observed that "well,
a court mediator is just someone on a list."
Who Tells the Story? Power Relations and Procedural Fairness. As more
of the videotaped mediation was examined, several of the seminar participants
discussed the problems that needed to be addressed in a situation where there
seems to be an imbalance of power between disputants. For the seminar partic-
ipants, these concerns centered around questions of procedure and balance (who
should speak when and why) as well as the need for the mediator to support a
disputant who might be powerless at any point in time. Among the issues raised
were (1) the responsibility of the mediator to address threats voiced by the dis-
puting parties, (2) the need to allow the disputants to be themselves during the
mediation, and (3) the appropriate time and place (within the mediation process)
for caucusing. After viewing one segment of the mediation, a female participant
(P6), who is a lawyer-mediator, commented as follows:

P6: I didn't like the way [the mediatorl turned the attention to [the female
disputant]. She was asked, "Is there anything you would like to add?"
rather than asking what her side of the situation is or asking her to
explain her perspective on the problem.
68 Cooks, Hale

M: Give us a definition of fairness that makes this seem unfair.

P6: Part of the problem here goes back to the issue of mediation that by neces-
sity starts with one party who defines the issues initially You can't have
both people speaking at once, but there is the need to try to ensure that
both parties have an opportunity to define the issues, that you're not
putting the second party always in the respondent's role, always operating
on the defensive. So, in terms of some kind of notion of fairness, I should
have some kind of opportunity to define the issues. Simply because I'm
speaking second shouldn't eliminate my opportunity to define an issue.

As was true of the discussion described earlier, the moderator structured

participant comments in terms of the ethical dimension of faimess-unfaimess.
On these occasions, fairness, and the ethical code or codes that it represents,
was presented as a concept that transcends the specifics of the dispute being
discussed and assumes the stature of a universal ideal. As with the standards
of practice documents, the goal to articulate a universal principle that, when
applied, will theoretically ensure fairness in all contexts and for all disputants.
Also similar to the earlier discussions, the ethical principle that emerges (as the
definition for fairness) is based on the concept of balance.
As the videotaped mediation progressed, balance of power became an even
more prominent concern. Following a segment of the mediation during which
the tenant expressed a great deal of concern for her personal safety, the semi-
nar discussion focused on the perceived threat of violence against the tenant
and the task of maintaining (manipulating) the balance of power within the
mediation. Building on the discussion of fair procedures in a situation of power
imbalance, P2 commented as follows:

P2: I'm troubled by [the tenant's] fear of [the landlord], and whether the
mediator is able to give her a safe haven. I guess my definition of fairness
is, well, one party is on equal level with the other.
P5: Yes, and she doesn't really have a chance to speak, whereas he's been
going on for a while, interrupting.
M: So, the importance of following procedure.
P5: The mediator's letting the [landlord] dictate the situation. [The landlord is]
threatening to take [the tenant] to criminal court, and this is supposed to be
her time to tell her side of the story, so he is not at all following procedure.
P4: I think you should stop the whole mediation and address that particular
threat and put an end to that, because [the landlord] has disrupted the
whole mediation process.
M: And give some words as to why this is unfair.
P4: We need to have an equal balance of power here.

A few minutes later, issues of power balancing and equality of process

emerged again in an exchange that highlighted differing interpretations of the
The Constructionof Ethics in Mediation 69

videotape mediator's actions and pointed to concerns about the manner in

which the moderator was framing the discussion:

P2: I think what he's doing here, the mediator, is giving us sort of a reality
check. He's giving the [landlord] an ultimatum, that if he can't settle here
he'll have to go to criminal court and that's the hard truth.
M: So, gratuitous legal advice. And what's the definition of unfairness?
P6: The definition of unfairness is that it's unfair to bring people in when
it's supposed to be an equal process and, then, start beating on them.
P2: So, pressure by the mediator here.
P4: It's interesting the difference in perspective here. I didn't hear any legal
advice. I thought it was important for [the landlord] to understand the
question about whether a judge would put this woman in jail in any sit-
uation, and if that's the question that was put to him, no answer was
given to him. And to say that when you file a criminal charge one of your
options is to go to court, when you're suing for damages,... then that's
information, but the problem here was that the third option wasn't
stated, that is, to walk through the mediation process. His point here
about being cooperative doesn't seem to me to deny this man who he is
unless we assume that all he can be is uncooperative.

The concerns expressed here speak to the ideas of impartiality, neutral-

ity, and fairness in procedure that contradict actions that seem to promote
a balance of power in this particular situation. The attempts to coordinate
the stories of the two disputants, the mediators' response, the moderator's
framing, and the seminar participants' reflections on the "mediated" medi-
ation result in an incoherence. That incoherence is positioned between the
story of mediation as an alternative form of dispute resolution that works
on the relationship between the disputants and attempts to empower the
disputants by developing a desirable story from an undesirable one.
Empowering Disputants by Allowing Them to Be Themselves Versus
Controlling Offensive Behavior. A theme that emerged as paradoxical in rela-
tion to the need for procedural (power) balance was the concern for freedom
of expression-that the disputant who was perceived as more powerfui was
not allowed to express his emotions. The mediator's attempt to engage in a fair
discussion meant that anger and offensive or belligerent behavior must be con-
trolled. Ethical considerations were expressed in terms of the rights of indi-
viduals "to be themselves," to engage in "free and open" discussion in a forum
where their concerns are heard:

P5: I think this has something to do with [reference to another mediation

case] . . . not letting the man be the offensive person, and in that exam-
ple the mediator was really taking control, but that's telling the man he
can't be himself.
70 Cooks, Hale

M: So you're concerned about his right to be the way he wants to be.

P5: Right, permitting anger.

The power granted to the expression of offensive behavior in situations of

conflict emerged in the stories that participants told about the videotaped
mediation. P5 discussed the tenant's story as one of fear and of accommoda-
tion to the threats of both the mediator and the landlord.

P5: I hear her expressing some very real fears for her safety, the children, if
not physical safety then certainly mental safety in that environment.
M: And tell us what fairness concern is there.

A female lawyer and mediation consultant (P7) replied as follows:

P7: Well the fairness concern is one for due consideration. [The mediator]
gave [the tenanti the opportunity to voice, but he's not showing that he
actually heard what she's expressed.
P3: And the mediator is trying to convince her not to be so accommodating.
P4: I've been in situations like that before where I've really got myself into
trouble by saying "Well, if that's really what you want to do" and it
becomes a real turning point. If their option isn't acceptable to you, the
natural reaction is to look to the authority figure and say, "Well, what
do you advise?" and on the other side they think they've thought out
this great option. Then you come along and say, "Well that's not great"
and you're in the position of either having to put something great on
the table or wait, like he's saying, "Well, what about this?" I mean,
there's nothing concrete for her to get into. The complainant, all he did
was dismiss her.

The ability of the tenant to engage in self-determination given the absence

of a safe environment (both inside and outside the context of mediation) is
raised here as a significant concern. The mediator's exercise of both impartial-
ity and neutrality is also subject to question. The mediator's apparent loss of
control (or failure to exercise control) with respect to the mediation process is
seen to put the process itself in jeopardy.
Settlement Dilemma: Equalizing Content (Power as Property Equity) and
Procedure (Valuing the Individuals and the Relationship). The seminar par-
ticipants discussed the fairness of the proposed settlement in terms of the ethi-
cal choices made by the mediator. On the one hand, the issue of dependence is
important to any ethical consideration in mediation: The very process of medi-
ation creates a situation where the complainant's story is the foundation on which
all other stories must be built. On the other hand, the ideas of neutrality and
impartiality expressed in-ethical codes (and implicit in the seminar participants'
stories) establish a basis on which a mediator should be able to judge the
The Constructionof Ethics in Mediation 71

"sense" of the differing realities for each disputant (and, thus, no one person's
story should be privileged above all others). The mediator can attempt to rec-
oncile this dilemma by allowing each disputant ample time to tell his or her story,
but the opportunity for new stories to emerge is not part of the discourse of
rebuttal. Although the mediator is obligated to be an impartial listener, rational-
ity for the mediator ultimately lies in making sense of the stories told. Making
sense means establishing (personal) coherence between the stories told and other
stories about what is fair or ethical treatment in human relationships.
Inconsistencies in addressing ethical concerns in mediation are perhaps
most evident in discussions of power that displace the emotional context of
moral decision making in favor of content decisions (expressed as property)
and procedural decisions (expressed in terms of how stories may be told). Yet
much of the seminar participants' discussions about power revolved around
deciding who holds power, how to maintain an equal balance of power, and
what to do when imbalances occur. P5's comments illustrate these concerns:

It has something to do with the mediator making the empowered choice. This
person, the woman in the tape, makes choices but the mediator does nothing
to empower her to make those choices. He doesn't listen to her feelings; he
doesn't let her get past her fear. She has a lot of fear. It seems to me that the
mediator could talk to her about her fears and options instead of saying, "Well,
you're not making the right choices and I'm not going to help you make any
choices because I don't want to tell you what to do." There's a difference in
mediation between letting people do what they want and not letting them mess
themselves up by doing that, and I try to come out in the middle by empow-
ering them to make good choices.

The extent to which the stories told were about powerful versus power-
less behavior was expressed in concerns about the mediator's competence.
Specifically, the competence of the mediator was defined by his ability to bal-
ance the power dynamic. What stories about power emerged from this con-
ceptualization?
First, the narratives were less about the number of stories available to dis-
putants at a given point in time and more about the mediator's ability to bal-
ance the expression of needs and emotions while remaining neutral and
impartial. The meta-analysis of the videotaped mediation suggests the inter-
dependence of mediator and disputants in coordinating the meanings that they
gave to the stories told. Mediator competence cannot be studied in isolation
from the stories told by the disputants, nor can disputants' stories be exam-
ined apart from the competencies of the mediator. This reality points to dilem-
mas (concerning the meaning and enactment of neutrality and impartiality)
created in ethical codes intended to stand apart from the content of mediation
itself.
The second issue builds on the first: Ethical considerations raised about
the fairness of the mediation procedure are concerns about the ability of the
72 Cooks, Hale

mediator to maintain a balance of power. Paradoxically, the mediator must

remain impartial (unaffected by the disputants' stories) while creating discur-
sive openings for the disputants to express themselves fully
Finally, the conceptualization of power as a totalizing system ignores the
contextual nature of ethical choices and responsibilities. Stories about the eth-
ical choices and responsibilities of both mediators and disputants are not con-
tained within some equation of total and complete power. Instead, ethical
choices are created within socially constructed episodes. To view ethics as part
of the ongoing choices made when fashioning stories (within the context of a
mediation or any other context) is to define ethical theorizing as part of the
sense making in everyday, mundane experience.

Coherence and the Construction of Ethics in Mediation

The purpose of these discussions at the Hewlett seminar was not to formalize
a new code of ethics for mediation but rather to involve the seminar partici-
pants in an exploration of when and where ethical dilemmas were present dur-
ing one videotaped example. The seminar had, for us, achieved the purpose
of providing a forum for raising questions about distinctions between the ideal
of mediation, as described in the various standards documents, and the sub-
jective construction of ethics within situated practice.
The first phase of our analysis centered on principles articulated in formal
statements concerning ethical behavior. The four principles that functioned as
the basis for discussion of fairness in these documents were disputant self-
determination, informed consent, mediator impartiality, and mediator neu-
trality Each emerged in the discourse about procedural fairness, power
imbalance, and empowerment discussed in the second portion of our analy-
sis. While the representation of these principles in discussions of fairness is
certainly no surprise, their emergence as paradoxes within which mediators
must operate argues for a different look at the meanings given to these concepts.
That mediators must act discursively to contradict the standards in order to
uphold their sanctity provides a forum for exploring the relationship between
the discursive construction of ethics and the assumptions that guide practice
in the mediation profession.
Arguments that the discourse represented here is coherent in relation to
some larger ethical system of beliefs can only be assumed; yet the relationship
between disputants' stories and the paradoxes occurring between representa-
tion (what is) and discursive action (what might or might not be) are recog-
nized as ethical dilemmas. The lack of resolution to these dilemmas lies in the
strange loop discussed earlier. Mediators recognize their obligation to uphold
the ethical codes of their profession and begin their sessions by telling dis-
putants that the role of the mediator is to serve as a neutral, impartial third
party; yet, in recognizing such concerns as procedural fairness and protecting
the balance of power and the self-expression of the individuals involved,
The Construction of Ethics in Mediation 73

mediators must contradict their earlier statements about neutrality and impar-
tiality To counterbalance the impact of the earlier assertions, mediators per-
form a variety of discursive acts. They summarize each disputant's story in turn
and then allow for elaboration. After the stories are summarized, mediators
explore the possibilities for resolving or restructuring them. During this stage,
mediators are often called on as allies to assess the case of one or more of the
disputants. At this point, they must again assert impartiality (for an example
of this strange loop, see Rifkin, Millen, and Cobb, 1991). The loop back to the
original statement of neutrality and impartiality allows the mediator to make
"sense" out of the "nonsense" of this process, to achieve coherence between the
discourse of the process and the structures that define it as mediation rather
than arbitration or adjudication.
The participants in the Hewlett seminar were in the midst of a similar
paradoxical loop in making sense of the fairness concerns elaborated in their
discussion. Their meta-analysis of the videotaped mediation began with calls
for the mediator to provide more information so that the disputants could
make informed decisions. The recognition that the mediator might provide
information to one of the disputants and not to the other led to questions
about the mediator's control over a process in which he should remain neutral.
The seminar participants expressed these questions in terms of informed con-
sent, which provided a coherent frame for their discourse within the profes-
sional ethical codes of their fields. The next set of discursive moves in the
discussion reestablished disputants' rights to self-expression as a valid issue.
This shift again aligned the mediator on the videotape, if only temporarily, with
one side of the dispute (first the landlord's anger, then the tenant's fear, then
the landlord's impatience, then the tenant's anger, and so on). Impartiality was
again affirmed as a problem when the language of the settlement was dis-
cussed. (How had the mediator precluded the choices of the tenant?) Although
concern for procedural fairness was voiced throughout the seminar discussion,
this concern was framed and, indeed, made coherent through the language of
the professional ethical codes developed for mediators.

Conclusion
Acknowledgment that the strange loop exists and can perpetuate the existence
of certain types of discursive moves places our analysis in a similar loop. Our
critique must now move beyond "laying out the details" and toward the possi-
bilities for new approaches to studying communicative action. For mediators,
the assumption is often that if two people can only listen to each other's story,
they can coordinate their goals to reach agreement. The story that is recreated
is, of course, not the story that emerges; mediation becomes the forum for
deciding the rules guiding moral choices in the storytelling. Recognition of the
norms that determine the coherence of any discussion can lead to an analysis
of the validity of those norms for the community in which they apply
74 Cooks, Hale

In the case of mediation, the "professionalizing" of the discourse around

ethics has led to discussions that silence the claims to validity voiced by dis-
putants and those who are outside the profession. The concerns articulated by
many in community mediation relate to the lack of consideration for media-
tion as a community-oriented project designed as an alternative to the legal
system and to the lack of consideration of culture and class differences in
designing ethical standards. Those mediators, lawyers, and judges with an
interest in the incorporation of mediation into the court system express a very
different set of problems. Yet, what is most notably missing in these discus-
sions is the voice of the disputant and the fairness or ethical concerns that he
or she might have about the mediation process.
The issues that are addressed as important to ethical codes of conduct
are the same issues that became ethical dilemmas (or paradoxes) for the sem-
inar participants in our analysis. The biggest loop seems to form around sto-
ries told about fairness and balance of procedure when the context might be
considered coercive for one or all participants. The issue of power is then
defined in terms of property and the rights of each side to their slices of the
pie. This story about power focuses on the means (equal procedure, fairness
considerations) only in terms of the ends (written agreement). What is
ignored in this process are the ways in which the procedure goes against the
attempts by the disputants to define the relationship in their own terms and
set their conditions for approval of the terms discussed. Advocacy of the
process becomes the very tool by which other stories about moral choices
are silenced.
Perspectives that focus on the ways in which the storytelling becomes the
story that is told provide unique and necessary insight into how the com-
plexities of the mediation process are made coherent and discussed as
(un)ethical or (un)fair. Bush (1992) argued that researchers in the field need
to focus on ethical dilemmas as a foundation for formalized ethical standards.
Our discussion is similarly concerned with the framing of ethical dilemmas,
but our practical and theoretical interests are differently situated. Our argu-
ment is that the ways ethics are talked about and deliberated over set the stan-
dards by which notions of fairness and justice are then ascribed to the
process. For us, this raises important questions about accessibility to truly
"alternative" resolutions to conflict: Who participates in discussions about
fairness, ethics, and justice? What understandings of fairness and unfairness
are not present in a forum such as that described in this article? If the push
toward standardization continues, how accessible will alternatives to the legal
system be?
Critical examination of these questions defines our future task. As for our
present efforts, we have taken a brief (and, admittedly, incomplete) look at a
community of professionals with an interest in deciding the fairness concerns
extant in a particular context of mediation. Both the approach adopted within
the seminar and our own approach to this analysis (re)legitimated certain stories
The Constructionof Ethics in Mediation 75

about ethical conduct while leaving other stories out of the discussion. Our
analysis perhaps poses more questions as to what comprises the ethics of med-
ication than it provides answers; it also raises the specter of the community as
a more rational place or location within which to situate the discussion. We
hope that future studies in this area continue to look in greater depth at the
relationship between the professional discourse of ethics in mediation and the
community of discourses within which these and other stories are told.

Notes
1. For a presentation of the views of these individuals, as well as the views of Daniel Dozier, Ron
Kraybill, and Christopher Moore, see SPIDR (1987).
2. The five documents examined were those prepared or subscribed to by the ABA (1984), National
Association of Social Workers (1991), SPIDR (1987), Colorado Council of Mediation Organiza-
tions (1992), and Academy of Family Mediators (1985). This last set of standards is also subscribed
to by, among many other groups, the Association of Family and Conciliation Courts (1989).
3. Our purpose here is not to try to review fully the debates concerning mandatory mediation
but rather merely to point out that the existence and growth of mandatory mediation must be
considered when discussing ethical dilemmas. For commentaries that specifically address the
development of mandatory mediation, see Clark and Orbeton (1986), Cohen (1991), Duryee
(1992a, 1992b), Kelly and Duryee (1992), and Saposnek (1992).

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Leda M. Cooks is assistant professor of communication at the University of Massachusetts,

Amherst. She is also a volunteer community mediator.

Claudia L. Hale is associateprofessor of interpersonalcommunication at Ohio University,

Athens. She is also a member of the board of directorsfor the Athens Area Mediation Service
and a volunteer community mediator.