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Ethics in Mediation and Negotiation

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Ethics in Mediation and Negotiation

 Ethics in Mediation and Negotiation

Introduction

Ethics is the process of determining what is the right or wrong action. It sound easy, but it difficult task. It is because right or wrong perspective of individual may vary from others’ perspective. Right principle in one’s view may be wrong in another’s view. It is crucial for the mediators and negotiators to adopt ethical practices to maintain integrity of mediation process. Negotiators and mediators need to consider professional practices that are based on ethics. But, it is noticed that both negotiators and mediators do not take account on ethics at their peril. This report critically discusses this statement with examples of ethical issues that can arise for negotiators and mediators.

Core Ethical Values in Mediation and Negotiation

The practice of mediation and negotiation has been considered as viable and accepted modes of conflict management. But over the time, there was need to enhance the effectiveness of these modes to maintain the integrity and fairness in the mediation and negotiation process. For this, the ethics and standards of practice are introduced to shape and structure the conflict management modes to prepare the foundation for professional mediation practice. For centuries, there were no benefits of written ethical codes of conduct in negotiation and mediation practices.

It is mandatory for the negotiators and mediators to consider ethical aspects for maintaining integrity in their profession. There are ethical duties for the mediator and negotiator while performing their profession. Impartiality is major aspect that should be considered by the mediator and negotiator towards all participants in the mediation and negotiation process respectively at all times. There should not be any business and personal relationship between mediator and negotiator with any of the parties because it may lead to partiality towards any party due to disclosing potential areas of conflict. Regarding this ethical issue, in the case of Poly Software v. Su [1995], the court held that the success of mediation is dependent on the willingness of parties to disclose the information, strengths and weaknesses of the case and ability of the mediator to be neutral while carefully preserving the confidences. Apart from this, a mediator should not accept any gift from any party as it can raise the question on his/her impartiality. It is ethical duty of the mediator or negotiator to inform all participants but he/she cannot represent the participants. However, the mediator or negotiator is allowed to assist the parties to prepare the written settlement agreement.

Apart from this, a mediator or negotiator should be truthful and accurate in promoting his/her services. In mediation and negotiation marketing, there is no need for the professional to promise or guarantee results and make any statement favoring any party over another. However, the mediator is allowed to disclose any personal or financial interests to the parties. It is also ethical duty of the mediator or negotiator to decline to perform mediation or negotiation process if they are not sufficiently competent to perform their professional duties. It is also ethical duty of the mediator or negotiator to complete the process in a timely manner, there should be reasonable efforts by the professionals to advance the process on timely basis. Specific time schedule for the conflict handling should be free of other commitments by the negotiators and mediators.

Mediation process should be performed with procedural fairness as each party should be given an equal opportunity for participating and making decisions. However, it is not obligation for the mediator to ensure the substantive fairness of an agreement reached by the parties. In addition, there should be the informed consent of the parties with applicable law or court order in mediation process. It is ethical duty of the mediator or negotiator to disclose any information regarding general natures of the different processes and outcomes during process.

Confidentiality is also an ethical duty of the mediator or negotiator as it is mandatory for the professional to comply with laws related to confidentiality. Mediator must not use the information for personal gain. At the same time, it is also crucial for the mediator or negotiator to respect the participants’ rights both to participate in and to withdraw from the process at any time. It is ethical concern in mediation and negotiation process to have right of termination by the parties. In the case of Farm Assist Limited v The Secretary for Environment Food and Rural Affairs [2009], the court held that it is ethical duty of the mediator not to disclose the documents and information.

CASES

Birbrower, Montalbano, Condon & Frank v.Superior Court [1998] No. S057125

CEATS, Inc. v. Continental [2014] 755 F.3d 1356

Chang's Imports, Inc. v. Srader [2002] 216 F. Supp.2d 325

D’Arpino v. Rest. Assocs., Inc. [1999] No. 98 Civ. 7902 (WHP)

BOOKS

Albert F, Alternative dispute resolution: a developing world perspective (Routledge 2013).

Catherine B and Kahane D, Intercultural dispute resolution in aboriginal context (UBC Press 2013).

Craver, Charles B, Effective legal negotiation and settlement (LexisNexis 2012).

Craver, Charles B, Effective legal negotiation and settlement (LexisNexis 2012).

ARTICLES

Kray, Laura J., and Michael P. Haselhuhn, "Male pragmatism in negotiators’ ethical reasoning," Journal of Experimental Social Psychology 48, no. 5 (2012): 1124-1131.

 



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