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 Ethics in Mediation: Centralising
Relationships of Trust

Susan Douglas

Revision of the NationalMediatorAccreditationSystem, effective from

1 July 2015, removes the requirement for mediators to demonstrate
understandingof neutralityas an ethical competency. The principleof
impartialityhas been retainedand the principle of self-determination
has been newly included as an ethical competency. The self-determi-
nation of participants,recognised in the originalversion of the NMAS,
has been more clearly articulatedas the aim of mediation practice.
Abandonment of the principleof neutralitysignals a need to reconsider
the role of the mediator, which was once identified with control of the
process of mediation, though neutral as to its content and outcome.
Abandonment of neutrality calls for an alternativeframe of reference
for ethicalpracticein mediation. In this paper, the relationshipof trust
between mediator andpartiesis proposed as a suitable and defensible
alternative ethical framework. It is argued that this relationshipcan
be constructed according to principles associated with fiduciary and
therapeutic relationships, in recognition of the distinctive socio-legal
context of practice. Abandonment of neutrality also raises issues as to
the mediator's role in achieving fairness for participants.It is argued
that relationshipsof trust provide a convincing framework within
which to consider issues of substantive fairness in mediation.

I INTRODUCTION
Revisions to the National Mediation Accreditation System (NMAS), effec-
tive from 1 July 2015,1 signal changes to our traditional understanding of
mediation and the role of the mediator. Two specific changes demonstrate
a significant shift in understanding. First, reference to the neutrality of
the mediator has been omitted from the standards. Neutrality was once
a defining characteristic of the role of the mediator. 2 An understanding
of neutrality was also an ethical requirement for practice, according to
the original NMAS established in 2007 (effective Jan 2008).1 This change
arguably reflects sustained critique of neutrality in mediation. 4 Secondly,

1 Mediator Standards Board, National Mediator Accreditation System (NMAS)

(1 July 2015) <www.msb.org.au/sites/default/files/documents/NMASo201%o20
July%202015.pdf>.
2 See, for example, the definitions in Hilary Astor and Christin Mary Chinkin,
Dispute Resolution in Australia (Butterworths, 2nd ed, 2002) 83; Laurence
Boulle, Mediation: Principles, Process, Practice(Butterworths, 2nd ed, 2005) 4.
3 National Mediation Accreditation System (NMAS), Practice Standards (2007)
cl 7(c)(iv).
4 The reasons for omission of neutrality in revisions of the NMAS have not been
published. For a critique of neutrality see, for example, the seminal work of

44
 ETHICS IN MEDIATION: CENTRALISING RELATIONSHIPS OF TRUST

understanding of self-determination has been inserted as an ethical

requirement for practice and confirmed as a defining feature of mediation,
now clearly described as a 'process that promotes the self-determination
of the participants'. 6
These changes pose challenges for understanding the role of the media-
tor. Neutrality was once the cornerstone of that role.7 When placed in the
context of the facilitative model of practice, neutrality provided assur-
ance, in theory if not in practice, of the self-determination of participants.
Three interrelated principles were central to traditional understanding.
According to the classic, facilitative model, mediation is understood as
divided into process, content and outcome.8 The mediator was understood
to be neutral in relation to the content and outcome of mediation but
in control of the process.9 The mediator's control of the process assured
procedural fairness for the parties. Self-determination was achieved by
the parties' control of the content and outcome of mediation. The parties'
control of the content and outcome ensured substantive fairness. Flaws
in the logic of these interrelated principles became evident with growing
awareness that mediators were not neutral in any absolute sense,10 that
there were other ways of looking at the dynamic of mediation, demon-
strated by other models," and that substantive fairness would not be
assured where one party suffered a disadvantage in relation to the other
party that could not be remedied by process, or procedural, interventions.1 2

Hilary Astor, 'Rethinking Neutrality: A Theory to Inform Practice - Part 1'

(2000) 11 AustralasianDispute Resolution Journal 73; Hilary Astor, 'Rethinking
Neutrality: A Theory to Inform Practice - Part 2' (2000) 11 AustralasianDispute
Resolution Journal 145.
5 NMAS, above n 1, Pt 111, cl 10.1(c) (iii).
6 Ibid, Pt 111, cl 2.2.
7 See, for example, Hilary Astor, 'Mediator Neutrality: Making Sense of Theory
and Practice' (2007) 16(2) Social and Legal Studies 221, 222; Rachael Field,
'Neutrality and Power: Myths and Reality' (2000) 3(1) The ADR Bulletin 16, 16;
Nigel Polak, 'No Longer Neutral: Practitioner Power in Compulsory (Family)
Dispute Resolution' (2009) 20 Australasian Dispute Resolution Journal 88,
89; Linda Mulcahy, 'The Possibilities and Desirability of Mediator Neutrality:
Towards an Ethic of Partiality?' (2001) 10(4) Social and Legal Studies 505, 509.
8 Boulle, Mediation, 2nd ed, above n 2, 29-30; and for a more recent view see
Laurence Boulle, Mediation: Principles, Process, Practice (Butterworths, 3rd ed,
2011) 43-48.
9 Astor and Chinkin, above n 2.
10 Astor, 'Rethinking Neutrality', Parts 1 and 2, above n 4; see Susan Douglas,
'Mediator Neutrality: A Study of Mediator Perceptions' (2008) 8(1) Queensland
University of Technology Law and Justice Journal 139,139-141.
11 See Susan Douglas, 'Neutrality, Self-determination, Fairness and Different
Models of Mediation' (2012) 19 James Cook University Law Review 19; John
Winslade and Gerald Monk, NarrativeMediation: A New Approach to Conflict
Resolution (Jossey-Bass, 2000); Robert A Barusch Bush and Joseph P Folger,
The Promise of Mediation: A Transformative Approach to Conflict (Jossey-Bass,
revised ed, 2005).
12 See Rachael Field, 'Mediation Ethics in Australia: A Case for Rethinking the
Foundational Paradigm' (2012) 19 James Cook University Law Review 41, 65-68.
See particularly 66 fn 165 for a list of the author's papers in relation to this issue.

45
ETHICS IN ALTERNATIVE DISPUTE RESOLUTION

Reassessment of what delineates the nature and scope of the media-

tor's role is needed given abandonment of neutrality in the NMAS. A
revised understanding needs to encapsulate the essence of that role for all
mediators, despite varying models and practice contexts. Scholars have
suggested various ethical models to articulate that essence. The following
discussion contributes to that endeavour by proposing that the relation-
ship of trust between mediator and parties be adopted as a framework for
ethical practice in mediation. The NMAS describes the knowledge, skills
and ethical understandings required for practice. It is a premise of this
discussion that relationships of trust provide an ethical framework for
mediators' use of all three dimensions of practice,'" in other words, for any
and all of the practice decisions and interventions they make.
Discussion is in six parts. The first part examines ethical frameworks
for mediation developed or advanced by Australian scholars.1 4 The second
part examines current ethical issues in mediation. The third part explores
mediation and professional relationships and examines the relevance of
trust in the relationship between mediator and parties. The following two
parts examine fiduciary and therapeutic relationships as sources of ethical
duties, obligations and principles that can be employed to shape an ethical
practice for mediation. The final section concludes by bringing together
principles from the preceding discussion to articulate the character of
relationships of trust in mediation.

II A REVIEW OF EXISTING ETHICAL FRAMEWORKS FOR

MEDIATION
There have been several recent attempts in the Australian context to
identify a set of unifying ethical principles to guide mediation practice."
One such attempt is the work of Rachael Field. In a series of arguments,
Field calls for an abandonment of neutrality as misrepresenting the role
of mediators, particularly in relation to addressing issues of imbalances
of power and hence of substantive fairness. 16 Field advances a contextual
ethical paradigm for practice, centralising party self-determination as

13 See Julie MacFarlane, 'Mediating Ethically: The Limits of Codes of Conduct and
the Potential of a Reflective Practice Model (2002) 40 Osgoode HallLaw Journal
49, 49 where the author argues that every mediators intervention involves an
ethical decision.
14 Discussion is limited to the Australian context given a focus on the NMAS in
Australia and the limits of space.
15 For notable international approaches see MacFarlane, above n 13; Ellen
Waldman, 'Values, Models, and Codes' in Ellen Waldman (ed), MediationEthics:
Cases and Commentaries 1 (Wiley, 2011).
16 Rachael Field, 'Rethinking Mediation Ethics: A Contextual Method to Support
Party Self-Determination' (2011) 22(1) AustralasianDispute Resolution Journal
8, 9; see also Rachael Field, 'Exploring the Potential of Contextual Ethics in
Mediation' in Reid Mortensen, Francesca Bartlett and Kieran Tranter (eds),
Alternative Perspectives on Lawyers and Legal Ethics:Reimagining the Profession
(2011) 158-198.

46
 ETHICS IN MEDIATION: CENTRALISING RELATIONSHIPS OF TRUST

the normative and categorical aim of practice." She proposes five guiding
principles for the practice of a contextual ethical method in mediation:
a thorough contextual analysis of the dispute and the parties; use of a
framework of informed consent; adoption of a relational and caring ethic;
adherence to the principle that mediators do not impose decisions and
hence to do so would be unethical; and an overarching justification for
situational action that supports party self-determination. 8
Crowe articulates a model of mediation ethics drawing on moral
psychology, which sees ethical judgement as a practical skill developed
by repeated exposure to situational contexts.19 Crowe's model has
three stated characteristics. It is situational rather than rule-oriented,
emphasising the practice guides principle. It is diachronic rather than
synchronic, emphasising the development of organic guidelines rather
than timeless rules. Thirdly, the model is community-oriented, emphasis-
ing a community of practice, rather an individualistic endeavour. Crowe's
model further acknowledges the professional nature of mediation prac-
tice, its unique contribution as a profession and the diversity of practice
approaches and models.
Hardy and Rundle argue that open-ended contextual approaches can
be too open-ended and fluid and therefore lack appropriate guidelines for
practitioners. 20 They apply a model of ethical decision-making developed
by McAuliffe and Chenoweth for social work practice, 21 to mediation. The
model is described as 'an inclusive model of ethical decision-making'.22
It combines recognition of four foundational principles underwriting a
series of steps for ethical decision-making. The authors of the model note
that ethical decision-making in social work is defined as 'the process of
critical reflection, evaluation and judgement through which a practitioner
resolves ethical issues, problems and dilemmas'. 23 The foundational prin-
ciples, or platforms, they identify are accountability, critical reflection,
cultural sensitivity and consultation. 2 4
Ojelabi and Sourdin propose a values-based approach to media-
tion based upon a platform of core values, namely, freedom, justice,
equality and peace. 25 The authors argue that these core values can be

17 Field, Rethinking Mediation Ethics', above n 16, 9.

18 Ibid 10-15.
19 Jonathan Crowe, 'Ethics and the Mediation Community' (2015) 26 Australasian
DisputeResolution Journal 20.
20 Samantha Hardy and Olivia Rundle, 'Applying the Inclusive Model of Ethical
Decision-making to Mediation' (2012) 19 James Cook University Law Review
70.
21 Donna McAuliffe and Leslie Chenoweth, 'Leave No Stone Unturned: The Inclusive
Model of Ethical Decision-making' (2008) 2 (1) Ethics and Social Welfare 38.
22 Hardy and Rundle, above n 20, 70.
23 Ibid, 49 citing Australian Association of Social Work (AASW), Code of Ethics
(Union Offset, 2nd ed, 2010).
24 Hardy and Rundle, above n 20, 42-43.
25 Lola Akin Ojelabi and Tania Sourdin, 'Using a Values-based Approach in
Mediation' (2011) 22 AustralasianDispute Resolution Journal 258.

47
ETHICS IN ALTERNATIVE DISPUTE RESOLUTION

translated into practice through the use of a framework for decision-

making and action called the ERSR approach, signifying education,
recognition, support and resolution. 2 6 Noone and Ojelabi propose an
access to justice approach to the measurement of the quality of justice
in mediation. 27 The authors examine access to justice principles devel-
oped by the Commonwealth Government Access to Justice Taskforce
and suggest how they could be applied to mediation. The principles
they identify are accessibility, appropriateness, equity, efficiency and
effectiveness. 28
Another approach has been to look at the ethical codes of different
professions. For example, Wolski has presented a thorough analysis of
voluntary codes of conduct for lawyers as representatives of their clients in
mediation against a background of the requirements of ethical practice for
lawyers generally. 29 Litaba has examined professional codes of conduct for
social workers, psychologists and lawyers in an investigation of principles
for the ethical practice of family dispute resolution practitioners under the
Family Law Act 1975 (Cth). 0
These varying approaches to mediation ethics draw upon differing
perspectives emphasising or combining legal, socio-behavioural and
or philosophical vantage points. Each is an attempt to grapple with
the interrelated questions of what ethical principles should guide the
mediation profession as a whole (for example, justice, equity and account-
ability) and with that, what principles should guide actual instances of
practice (for example, those drawn from a community of practice, criti-
cal reflection, an ethic of care and cultural sensitivity). For the broader
question of what guides the profession, the principle of participant self-
determination has been retained and centralised in the revised NMAS. 1
Ethical issues for mediation include what self-determination means and
how it can be furthered in mediation. Waldman identifies party autonomy
(or self-determination), procedural fairness and substantive fairness as
three central ethical principles and issues for mediation practice.3 2 The
relationship between these three principles is the focus of the next part
of discussion.

26 Ibid.
27 Mary Anne Noone and Lola Akin Ojelabi, 'Ensuring Access to Justice in
Mediation in the Civil Justice System' (2014) 40(2) Monash University Law
Review 561.
28 Ibid.
29 Bobette Wolski, 'On Mediation, Legal Representatives and Advocates' (2015)
38(1) UNSW Law Journal 5.
30 Oyiela Litaba, 'Developing Ethical Practice as a Family Dispute Resolution
Practitioner' (2013) 24 AustralasianDisputeResolution Journal 36.
31 NMAS, above nn 5-6.
32 Waldman, above n 15.

48
 ETHICS IN MEDIATION: CENTRALISING RELATIONSHIPS OF TRUST

III ETHICAL ISSUES IN MEDIATION

Self-determination is described as a primary objective" and core value of

mediation practice.3 4 Empirical research evidences mediators' adoption
of this principle as central to their practice." Field describes self-deter-
mination as the normative and categorical aim of practice.3 6 As noted
above, understanding of the self-determination of participants has been
included as an ethical requirement of practice in recent revisions to the
NMAS. 7 Lichtenstein defines self-determination as 'the individual's right
and ability to make decisions and take actions to follow those decisions
through.' 8 Self-determination is not however unequivocally defined in
the mediation literature. 9 It is associated with a range of meanings. 4 0
Self-determination is, for example, differently constructed across different
models of mediation.
Lichtenstein's definition is associated with the facilitative model,
which is reflected in the NMAS. The NMAS defines mediation as a
process that supports the self-determination of participants and in which
participants, with the support of a mediator, reach and make their own
decisions.4 1 A central aim of the transformative model is 'empowerment',
pursued in relationship to the other party's 'recognition' and given the
broader societal aim of the advanced moral growth of citizens. 42 In the
narrative paradigm individual decision-making is given a social context
through identification of a social justice agenda. The relationship of the
individual to society is given a particular focus with less emphasis on the
meeting of individualised needs. In Winslade and Monk's narrative model,
personal agency is identified. 43 In Cobb's storytelling model, celebration

33 James R Coben, 'Gollum Meet Smeagol: A Schizophrenic Rumination on Mediator

Values Beyond Self-determination and Neutrality' (2004) 5(2) Cardoza Journal
of Conflict Resolution 65, 65.
34 Dale Bagshaw 'Mediating Family Disputes in Statutory Settings (1995) 48(4)
Australian Social Work 3, 3; see Boulle, above n 2, 65-67; Douglas, 'Mediator
Neutrality, above n 10, 148-149.
35 Douglas, 'Neutrality, Self-Determination', above n 11; Mary Anne Noone and Lola
Akin Ojelabi, 'Ethical Challenges for Mediators around the Globe: An Australian
Perspective' (2014) 14 Washington University Journalof Law and Policy 145.
36 Field, Rethinking Mediation Ethics', above n 16, 9; see also Noone and Akin
Ojelabi, 'Ethical Challenges', above n 35, 165-168.
37 NMAS, above n 5.
38 Marsha Lichtenstein, 'Mediation and Feminism: Common Values and Challenges'
(2000) 18(1) Mediation Quarterly 19, 21.
39 Coben, above n 33, 66.
40 Nancy A Welsh, 'The Thinning Vision of Self-determination in Court-Connected
Mediation: The Inevitable Price of Institutionalization?' (2001) 6 Harvard
Negotiation Law Review 1, 15-18.
41 NMAS above n 5, Pt 111; NMAS, above n 3, cl 2.2 (f) (emphasis added).
42 Robert A Baruch and Joseph P Folger, The Promise ofMediation: Responding to
Conflict Through Empowerment and Recognition (Jossey-Bass, 1994) 2.
43 Winslade and Monk, above n 11, 50-51.

49
ETHICS IN ALTERNATIVE DISPUTE RESOLUTION

of personal responsibility and reciprocity are depicted as conducive to a

sense of community, further identified as a desirable outcome. 44
Constructions of self-determination in transformative and narrative
models draw attention to the fact that the self-determination of individual
parties necessarily occurs in a social context. Like the neutrality of the
mediator, self-determination of the participants can never be absolute.
The parties pursue their needs and interests in the context of their rela-
tionship. Hence each party's capacity to be self-determining is necessarily
circumscribed by the same capacity of the other party.45 Field's use of the
phrase 'relational self-determination' captures this reality. 46 Furthermore,
mediation occurs within wider social contexts including institutional and
regulatory contexts. These contexts impose limits on the ability of partici-
pants to be entirely self-determining. Family dispute resolution provides
a clear example, in which the best interests of the child circumscribe the
parties' interests. 47 The institutionalised use of court-connected media-
tion is another example. 48 Here the outcome may be self-determined, but
attendance is prescribed rather than voluntary, and therefore not self-
determined. 49 The issue of whether and how participants ought to receive
legal advice, in order to give informed consent to any agreement, 0 points
to the context of mediation within a broader justice system that reflects
community standards as to rights and obligations. What justice means in
mediation is, however, contested. 1 This is due, in part, to differing views
as to whether mediation's object is to ensure substantive fairness or only
procedural fairness.5 2
According to the traditional view, mediators' control of the process
limits their role to ensuring procedural fairness. Control of the process
was traditionally said to ensure substantive fairness because it ensured
the self-determination of the parties." However, critique of the mediator's
claimed neutral role has challenged these assumptions. Research and
practice critique have established that the mediator's process interven-
tions do have an impact on the content and outcome of mediation.5 4 Hence
the distinction between process and content or outcome cannot be abso-

44 Sara Cobb, 'Dialogue and the Practice of Law and Spiritual Values: Creating
Scared Space: Toward a Second-Generation Dispute Resolution Practice' (2001)
28 Fordham UrbanLaw Journal 1017, 1032-1033.
45 Douglas, 'Mediatory Neutrality', above n 10, 151; Boulle, Mediation, 2nd ed,
above n 2, 86.
46 Field, 'Rethinking Mediation Ethics', above n 16, 10.
47 Family Law Act 1975 (Cth) s 69ZN. See Boulle, Mediation, 2nd ed, above n 2,
409.
48 See Boulle, Mediation, 2nd ed, above n 2, 395-396.
49 Ibid 65-66.
50 Noone and Akin Ojelabi, 'Ethical Challenges', above n 35, 155.
51 Ibid 152-158.
52 Ibid.
53 See Douglas, 'Neutrality, Self-Determination', above n 11, 23-24; Field, 'Mediation
Ethics in Australia', above n 12, 42.
54 See Astor, 'Rethinking Neutrality' Parts 1 and 2, above n 4.

50
 ETHICS IN MEDIATION: CENTRALISING RELATIONSHIPS OF TRUST

lute." This is a view consistent with the social constructionist worldview

that guides transformative and narrative models.5 6 Research has also
suggested that interventions are not value free and that mediators can
and do subtly dispose parties towards their own preferred outcomes. In
response to this dilemma, reflective practice and mindfulness are advo-
cated in order to limit if not eliminate the impact of mediators' bias.57
Two particular critiques of mediator neutrality extend understanding
of mediation as a whole. One, already noted above, is that like neutrality,
the self-determination of parties and the distinction between the process
of mediation and its content or outcome can never be absolute. The other
is that mediators and mediation cannot claim to be neutral in the sense
of being value free. 8 Mediation's primary value is promoting the self-
determination of participants. Focus on the self-determination of parties
creates the presumption that mediators' values should not direct the
process. Yet critique of neutrality has exposed the real potential for unjust
or inequitable outcomes where one party participates at a disadvantage,
which may be evidenced by an imbalance of power, and mediators claim
neutrality. 9 Hence the values of mediation and of mediators become criti-
cal in determining if and when to intervene beyond process to achieve
substantive fairness. To date there is no consensus among mediators in
answer to these questions. 60
Considerable debate exists about whether mediators have any role in
ensuring substantive fairness for the participants. 6 1 In a recent empirical
study conducted by Noone and Akin Ojelabi, the researchers found that
most of the mediators sampled believed they should not be concerned with
the substantive fairness of a mediated outcome. 62 The mediator's role in
ensuring procedural fairness is well recognised. 63 The NMAS includes
a requirement under cl 10.1(c)(v) of Pt III that mediators understand
ethical principles in relation to: 'safety, procedural fairness and equity
in mediation including withdrawing from or terminating the media-

55 See Boulle, Mediation, 2nd ed, above n 2, 29-31.

56 See, for example, Cobb, above n 44, 1029.
57 See Dale Margaret Bagshaw, 'Self Reflexivity and the Reflective Question:
Broadening Perspectives in Mediation' (2005) 24(2) The ArbitratorandMediator
1; Mark Dickinson, 'The Importance of Self Awareness and Self Development to
Mediator Effectiveness' (2010) 21 AustralasianDispute Resolution Journal 97;
Tom Fisher, 'Who's Minding the Mediator? Mindfulness in Mediation' (2003)
5(10) ADR Bulletin 165; Evan M Rock, 'Mindfulness Mediation, the Cultivation
of Awareness, Mediator Neutrality, and the Possibility of Justice' (2006) 6(2)
Cardozo Journalof Conflict Resolution 347, 354.
58 See Susan Douglas,'Questions of Mediator Neutrality and Researcher Objectivity:
Examining Reflexivity as a Response' (2009) AustralasianDispute Resolution
Journal 56, 57.
59 See Astor, 'Rethinking Neutrality' Parts 1 and 2, above n 2; Field, 'Mediation
Ethics in Australia', above n 12.
60 See Noone and Akin Ojelabi, 'Ethical Challenges', above n 35.
61 Ibid 152-158, 179-182.
62 Ibid 180.
63 Ibid 166-168, 186.

51
ETHICS IN ALTERNATIVE DISPUTE RESOLUTION

tion process'. 6 4 Clause 7 of the NMAS sets out principles of procedural

fairness 65 and impartiality as standards for practice. Clause 7 requires
mediators to provide an opportunity for participants to be heard 6 6 and
to have adequate time and opportunity to be properly informed. 6 7 It also
requires mediators to avoid or disclose grounds of bias or conflicts of inter-
est to the parties. 6 8 Clause 7 requires mediators to support participants
to reach agreements freely and voluntarily with informed consent and
without undue influence. 6 9
Although the principle of neutrality has been omitted from the revised
NMAS, the principle of impartiality has been retained. Clause 7 provides
that a 'mediator must conduct the mediation in a fair, equitable and
impartial way, without favouritism or bias in act or omission.' 7 0 Under
cl 10.1(c)(vi) mediators are required to demonstrate understanding of
'impartiality including the avoidance of conflicts of interest. 7 1 Scholars
have observed that impartiality is a generally accepted synonym for
neutrality. 72 Given the removal of any reference to neutrality in the
NMAS, it becomes necessary to distinguish these two concepts.
This author has argued that both neutrality and impartiality address
issues of real and potential bias in mediation, which can be limited but not
eliminated.73 Based upon that analysis, and in the absence of neutrality,
impartiality can be understood to mean, inter alia:
(1) Avoidance of conflicts of interest, qualified by rules of disclosure
and consent; and consistent with the common law conflict rule and
extending to requirements not to misuse information or position.
(2) Impartiality in relation to both parties; achieved by limiting the
intrusion of bias due to mediators' personal situatedness, or their
personal prejudices, preconceptions, preferences and persuasions.
(3) Impartiality as between the parties; achieved, by not taking sides,
avoiding favouritism and by being even-handed.

64 NMAS, above n 1, cl 10.1(c)(vi) (emphasis added).

65 NMAS, above n 1, cl 7. Reflecting the rules of natural justice, viz, the hearing
rule, the no evidence rule and the rule against bias.
66 NMAS, above n 1, cl 7.5.
67 Ibid, cl 7.6.
68 Ibid, cl 7.2 and 7.3; reflecting the rules of natural justice.
69 Ibid, cl 7.4.
70 Ibid, cl 7.1.
71 Ibid, cl 10(1)(c)(vi).
72 Astor, 'Rethinking Neutrality - Part 1', above n 4, 76-77; Astor, 'Mediator
Neutrality', above n 7, 222; Astor and Chinkin, above n 2, 150; Boulle, Mediation,
2nd ed, above n 2, 32-33; Rock, above n 57, 354-355; Field, 'Mediation Ethics in
Australia', above n 12, 49-56 in which the author considers neutrality in a broad
sense to incorporate notions of impartiality.
73 Susan Douglas, 'Constructions of Neutrality in Mediation' (2012) 23 Australasian
Dispute Resolution Journal80; The distinction between impartiality in relation
to both parties and as between parties is made by Astor, 'Rethinking Neutrality,
Parts 1 and 2, above n 4.

52
 ETHICS IN MEDIATION: CENTRALISING RELATIONSHIPS OF TRUST

Elsewhere, the author has argued that similar constructions of impartial-

ity are synonymous with neutrality. 4 They are arguable however without
reference to neutrality and are consistent with the context of meaning
in the NMAS, which refers to the conflict rule and 'impartiality, without
favouritism or bias'. Importantly they are distinguishable from neutrality
where neutrality is understood as an absolute requirement and a value
free position.
Scholars have proposed that neutrality and self-determination can be
understood as related concepts. Boulle notes, for example, that:
[M]ediator neutrality is the other side of the self-determination princi-
ple, in that the mediator is disinterested in the mediated outcome and
is not responsible for imposing his or her own standards of fairness or
appropriateness. 5
As Astor argues, 'party control is, in a sense, the other side of the coin of
mediator neutrality'.7 6 This author has argued that mediator neutrality
and the self-determination of participants are grounded in the relation-
ship between mediator and parties, and can be understood as relational
concepts mediated by a postmodern construction of power." In the absence
of neutrality, it is proposed that impartiality depicts the attitude or stance
of the mediator in his/her relationship with participants. It is argued that
the relationship between mediators and participants is marked at one end
by the mediator's ethic of impartiality and at the other by mediation's
ethic of self-determination for the participants. As an ethic for mediation,
impartiality needs to be understood in relation to, or in the context of, the
ethic of self-determination.
Being impartial in mediation means more than not having a vested
interest, or personal view that affects the process, or being even-handed
(that is, the three meanings given above). It also means acting to facilitate
the parties' chosen outcomes. 7 8 In adjudication impartiality furthers an
unbiased application of law to the facts in reaching a decision. By contrast,
in mediation impartiality acts to further the participants' own decision-
making. When understood in relation to self-determination, impartiality
points to the necessity of a client-centred practice. Client-centred practice
originated with the work of Carl Rogers in counselling and social work. 9
It has been adopted by other professions,80 and is consistent with the

74 Douglas, 'Constructions of Neutrality, above n 73.

75 Boulle, Mediation, 2nd ed, above n 2, 67.
76 Astor, 'Rethinking Neutrality - 2', above n 4, 145.
77 Douglas, 'Neutrality, Self-Determination', above n 11, 151-153.
78 Extending an argument that neutrality and self-determination can be understood
as related concepts; See Douglas above n 10; Susan Douglas, Mediator Neutrality:
A Model for Understanding Practice (unpublished PhD thesis, University of
Southern California, 2010).
79 Carl R Rogers, Client-centered therapy: its current practice, implications and
theory (Constable, first published 1951, 2003 ed).
80 See, for example, Thelma Sumsion, Client-centred Practice in Occupational
Therapy: A Guide to Implementation (Churchill Livingston, 1999).

53
ETHICS IN ALTERNATIVE DISPUTE RESOLUTION

requirement to act according to a client's instructions.8 1 Taylor captures

this necessity when she describes self-determination as the "hallmark and
most central value for mediators", necessitating the "absolute requirement
that mediators take their mandate from the clients". 8 2
The NMAS requires that mediators demonstrate an understanding of
professional conduct.83 They 'must adhere to the ethical code or standards
prescribed by the professional organisation or association of which they are
a member or by whom they are employed.' 84 In what follows the centrality
of trust in professional relationships and in mediation is examined.

IV MEDIATION AND PROFESSIONAL RELATIONSHIPS

The introduction of the NMAS in 2008 was a milestone in the establish-
ment of mediation as a profession in its own right in Australia. The NMAS
provides a unifying system of accreditation and practice standards, but
remains a voluntary system. It overlaps with other accreditation systems
and practice codes for dispute resolution in Australia.85 The NMAS
acknowledges that mediators may be members of other professions and,
as noted, requires their adherence to the ethical code or standards of such
professions. Every professional relationship is a relationship of trust and
confidence. In an argument for the recognition of mediation as an emer-
gent profession in Australia, Field identifies a number of elements that
identify a profession, one of which is holding 'public office'. 8 6 According to
this element mediation satisfies the character of a profession by identify-
ing mediators as holding positions of trust and a warrant of authoritythat
has the purpose of serving others.87
Commentators identify trust as an important element in mediation.8 8
Participants' trust in the mediator has been identified as critical to success

81 See Queensland Law Society, Guide to Client Care: Communicationand Service

(24 September 2014)<www.qls.com.au/Knowledge centre/Practising resources/
Client Care Guide>.
82 Alison Taylor, 'Concepts of Neutrality in Family Mediation: Context, Ethics,
Influence, and Transformative Process' 14(3) Mediation Quarterly 215, 230.
83 NMAS, above n 1, cl 10. 1(c)(ii).
84 Ibid.
85 See, for example, Resolution Institute, Information on Accreditation Through the
Resolution Institute (previously LEADR and IAMA) <www.resolution.institute/
qualifications/mediation>; Boulle, Mediation, 3rd ed, above n 8, 486-493.
86 Rachael Field, 'A Mediation Profession in Australia: An Improved Framework
for Mediation Ethics' (2007) 18(3) AustralasianDispute Resolution Journal 178,
182; see also Boulle, Mediation, 3rd ed, above n 8, 397-400.
87 Field, 'A Mediation Profession in Australia', above n 86, 182 citing FC De Coste,
'Towards a Comprehensive Theory of Professional Responsibility' (2001) 50
University of New Brunswick Law Journal 109, 117.
88 Laurence Boulle, Mediation: Skills and Techniques (Butterworths, 2001) 41-42;
Stephen Goldberg, 'The Secrets of Successful Mediators' (2005) 21(3) Negotiation
Journal 364; Andrew H Kydd, 'When Can Mediators Build Trust?' (2006) 100(3)
American PoliticalScience Review 449; Christopher Moore, The MediationProcess:
PracticalStrategies for Resolving Conflict (Jossey-Bass, 3rd ed, 2003) 191-194.

54
 ETHICS IN MEDIATION: CENTRALISING RELATIONSHIPS OF TRUST

in mediation;8 9 and trust between the parties has been evidenced as a

significant factor in successful negotiations.90 Moore defines trust as 'a
person's capacity to depend on or place confidence in the truthfulness
or accuracy of another's statements or behaviour'.91 Boulle defines trust
as 'one person's willingness to believe, to be open to, and to take risks
with, another person'. 92 Boulle identifies a number of techniques that a
mediator can use to encourage the parties' trust in both the mediator and
the process. He lists the following suggestions for mediators:
(1) affirming their credentials as mediators and dispute resolvers;
(2) showing respect and concern for the parties;
(3) establishing a personal rapport with the parties;
(4) using active listening skills and acknowledging the parties'
concerns; and
(5) being impartial and even-handed in the conduct of the process.93
Affirming a mediator's credentials means acknowledging their expertise.
According to Haynes, the professed expertise of the mediator produces an
automatic imbalance of power with parties. 94 Boulle argues that an imbal-
ance in these circumstances can be employed in developing a positive
relationship of trust. Showing respect for parties means acknowledging
their autonomy and acts as a reminder of the role of the mediator in
fostering that autonomy.
Establishing rapport, actively listening and acknowledging concern
are skills that foster engagement with parties. Professional engage-
ment requires an objective stance. Professional objectivity is generally
understood to mean limiting the intrusion of subjective bias. It includes
emotional detachment. Emotional detachment is a dimension of impar-
tiality in the second sense identified above. It includes circumstances
where mediators seek to avoid the impact of their personal emotional
responses, as well as opinions and preferences, on the mediation.
Emotional detachment does not however have to mean aloofness or lack
of feeling, particularly when combined with empathy. Empathy is an
emotional response that conveys compassion and understanding and
is distinguishable from sympathy, where there is identification with
another's feelings.95 Empathy is identified as an essential ingredient in
relationships of trust. 96

89 Goldberg, above n 88.

90 Kydd, above n 88.
91 Moore, above n 88, 192.
92 Boulle, Mediation: Skills and Techniques, above n 88, 41-42 (emphasis omitted).
93 Ibid.
94 John Haynes, 'Mediation and Therapy: An Alternative View' (1992) 10(1)
Mediation Quarterly 21, 23.
95 Gerald Egan, The Skilled Helper: A Problem-management and Opportunity-
development Approach to Helping (Cengage Learning, 10th ed, 2014). See also
Michael Slote, The Ethics of Care and Empathy (Taylor and Francis, 2007).
96 See David Howe, Empathy: What it is and Why it Matters (Palgrave Macmillan,
2013).

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ETHICS IN ALTERNATIVE DISPUTE RESOLUTION

Boulle recognises impartiality (in relation to both parties) and even-

handedness (impartiality as between parties) as significant in fostering
trust. In a study conducted by Poitras, impartiality was found to be the
most significant variable in developing a relationship of trust between
mediators and parties. The study found that partiality, or appearing to
take sides, was enough to'shatter trust'.97 Research shows that elements
of trust, impartiality, empathy and rapport are all significantly intercon-
nected in the relationship between mediator and participants. In a study
by Goldberg more than 75 per cent of the mediators sampled attributed
their success in mediation (measured by settlements) to their ability to
develop rapport with the parties, described as 'a relationship of under-
standing, empathy and trust'.9 8
Authority, in the definition of a profession referred to above, repre-
sents legitimised power. The power exercised by mediators is a function of
their recognised expertise and the place of mediation within institution-
alised systems of recognition and accountability. Authority comes from
professional, organisational and statutory contexts recognised by the
community. The NMAS serves as a framework for a professional system
of accountability for mediators, albeit a voluntary system. The NIAS also
articulates the minimal measures of expertise across knowledge, skills and
ethical understanding expected of an accredited mediator. A mediator's
role is described as using 'the knowledge, skills and ethical principles . .
of the NMAS to assist participants to make their own decisions in relation
to disputes, conflicts or differences among them.'99 Authority, expertise
and institutional recognition enable participants to have confidence in the
professional conduct of mediators.
Serving others represents a professional stance in relation to those
for whom a professional employs her expertise. Here objectivity in profes-
sional practice involves not only an approach that seeks to limit the impact
of personal subjectivity but, more crucially, it signals an approach that is
'other focussed', 0 0 or client-centred, or as identified by Crowe, as an 'other
orientation'.10 1 Client-centred practice is not peculiar to mediation, but it
is clearly consistent with the aim of party self-determination.
Having established that the relationship between mediator and
participants has the character of a relationship of trust, in which
participants derive confidence that mediators will serve the partici-
pants' interests rather than their own, further consideration can be
given to what principles properly guide ethical conduct by mediators
within that relationship. In the discussion to follow, principles associ-
ated with fiduciary and therapeutic relationships are examined for their
application to mediation practice. These two relationships are chosen in

97 Jean Poitras, 'What Makes Parties Trust Mediators?' (2009) 21(3) Negotiation
Journal 307, 321.
98 Goldberg, above n 88, 366.
99 NMAS, above n 1, Pt I, 2.
100 Douglas, Mediator Neutrality PhD Thesis, above n 78, 100.
101 Crowe, above n 19.

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 ETHICS IN MEDIATION: CENTRALISING RELATIONSHIPS OF TRUST

acknowledgement of the legal and socio-behavioural influences that have

shaped mediation practice.

V MEDIATION AND FIDUCIARY RELATIONSHIPS

Fiduciary relationships are quintessentially relationships of trust in which
the fiduciary is expected to be 'other focused,' or 'other orientated. A fiduci-
ary 'is a person who is expected to act in the interests of another person.
Fiduciaries cannot use their knowledge or position to benefit themselves
rather than the person on whose behalf the fiduciary is required to act.'1 0 2
Mediators were required to understand the nature of fiduciary obliga-
tions under the NMAS 2008.o10 This requirement has been replaced by the
broader requirement to understand professional conduct. 104 The character
of fiduciary relationships can be applied to mediation. Consequently prin-
ciples associated with fiduciary relationships can be employed to guide
ethical practice in mediation.
The hallmarks of fiduciary relationships are reflected in mediation.
Fiduciary relationships are said to arise where one party is in a position
of trust in relation to another. 05 Abroad test was enunciated by the High
Court in Hospital Products Ltd v United States Surgical Corporation.10 6
According to that decision, a fiduciary relationship arises where a puta-
tive fiduciary gives an undertaking, or agrees to act for or on behalf of or
in the interests of another person, in the exercise of power or discretion,
which will affect in a legal or practical sense the interest of that other
person.
Applying the test from the Hospital Products Case mediation, the
principle of party self-determination and the mediator's role in facilitating
that self-determination is an undertaking to act for, or on behalf of the
interests of others, namely the parties. The requirement to act in the
interests of another in the exercise of power is a feature of the mediator's
relationship with the parties. This element, when applied to mediation,
enables acknowledgment of the mediator's exercise of power in relation
to the parties. Furthermore, applying this fiduciary requirement to the
exercise of mediator power provides a clear principle for the exercise of
that power, namely, that it be exercised in the interests of parties and not
the mediator. The mediator's exercise of power will affect the interests of
parties at least in a practical sense and hence satisfy the final requirement
of the High Court's test. Agreements in mediation may or may not be
legally enforceable, but practical implications do flow from the parties'
experience of mediation and from any agreements reached.

102 Pamela Hanrahan, Ian Ramsay and Geoff Stapledon, Commercial Applications
of Company Law (Oxford University Press, 17th ed, 2016) 196.
103 NMAS 2007, above n 3, cl 7(c)(v).
104 NMAS, above n 1, cl 10. 1(c)(ii); reasons for this change have not been published.
105 Sitesh Bhojani, 'Professionals' Fiduciary Relationships - An ACCC View' (2003)
Proctor22, 22.
106 (1984) 156 CLR 41 (Hospital Products Case').

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ETHICS IN ALTERNATIVE DISPUTE RESOLUTION

There are a number of duties implied by law into fiduciary relation-

ships, including the duties to act for a proper purpose, to act in good faith
and in the best interests of the other, and to avoid conflicts of interest. 107
Acting for a proper purpose in mediation means acting to promote the
self-determination of parties, and therefore to provide and promote
opportunities for participants to reach their own decisions. Acting in the
best interests of parties in mediation is consistent with the core princi-
ple of promoting party self-determination. As noted, neutrality and the
distinction between process and content limited mediators to assessing
the parties' best interests in terms of procedural fairness. The concept of
fiduciary relationship permits recognition that mediators will influence
the content and outcome of a dispute. It acknowledges the fact of that
influence and gives guidance as to its proper scope by requiring that it be
exercised in the parties' best interests.
A core indicator of the best interests of the parties is the opportunity
to reach their own decisions, to be self-determining as between them.
This is the core imperative guiding the practice of mediation. It is what
mediation espouses as being in the best interests of the parties. Beyond
this core measure, the parties' best interests will vary according to vari-
ous factors, including the interests of the parties as individuals, cultural
contexts, the nature of the dispute and its cultural, organisational and
statutory contexts. The collective best interests of the parties will arguably
be co-incident with community standards reflected in statutory contexts.
Minimal standards of substantive fairness reflected in law have a place
as a prescriptive context for mediation because they address tensions in
promoting the self-determination of both parties where their aims are in
conflict and or where one party is negotiating at a recognisable disadvan-
tage.10 8 Here, acknowledgement can be given to the reality that mediators
make assessments that determine their interventions, and that the strate-
gies they adopt have an impact on the course of the mediation requiring
them to be accountable. The duty to act in the best interests of parties does
not provide a ready reckoner for determining proper intervention in every
case. However, it does allow for assessment based upon both procedural
and substantive fairness because it is not limited to issues of process.
Fiduciaries have a duty to avoid conflicts of interest. Similar to the
bias rule in adjudication, a fiduciary is required to disclose any actual or
apparent conflicts of interest.109 As noted above, this duty is reflected in the
NMAS standards. The duty in law extends to a requirement not to misuse
information or position, the first of which is contained in the NMAS."1 0
The requirement of impartiality as between the parties distinguishes
mediation from some other fiduciary relationships because it points to

107 Hanrahan, Ramsay and Stapledon, above n 102. Additional duties include to
retain discretions and to act with reasonable care and diligence.
108 For example, as in family dispute resolution where a child's best interests are
paramount or where domestic violence is an issue.
109 Hanrahan, Ramsay and Stapledon, above n 102.
110 NMAS, above n 1, cl 8.2.

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 ETHICS IN MEDIATION: CENTRALISING RELATIONSHIPS OF TRUST

the need for mediators to balance, as far as possible, the requirements of

fairness as between the parties. For example, while in the lawyer-client
relationship, the lawyer is required to advocate for the interests of their
client as against another party, in mediation the mediator must act in the
best interests of both parties. Acting for more than one party is recognised
in legal relationships outside the lawyer-client relationship. For example,
a trustee may need to look to the interests of more than one beneficiary.
When acting for the interests of a company, a director, or board of direc-
tors, may need to consider differing, possibly conflicting interests of
members.' In mediation it is particularly important to distinguish the
role of the mediator (including a lawyer mediator) from that of a lawyer
by emphasising the mediator's role in acting in the best interests of both
parties. Acting in the best interests of both parties means to facilitate
and balance, as far as possible, each party's opportunity to reach his/her
own decisions. 112 The role of the mediator is not dissimilar in this sense to
the role of a therapist in furthering the self-determination of each client
in joint therapy. While a mediator does not give legal advice or provide
counselling or therapy, mediators like lawyers and therapists have a duty
to act in their clients' best interests, although the contexts and detail of
that duty are different. Discussion now turns to other principles, those
deriving from therapeutic relationships, that have relevance for ethical
mediation practice.

VI MEDIATION AND THERAPEUTIC RELATIONSHIPS

Therapeutic relationships are necessarily relationships of trust, in which
the patient, or client, must feel sufficiently trusting of the therapist to
expose frailty, vulnerability and the need for help. Notions of procedural
and substantive fairness are not centrally associated with a therapeutic
perspective. Yet principles associated with therapeutic relationships can
extend our understanding of ethical mediation practice by extending
constructions of fairness.
While ongoing therapeutic relationships do not occur in mediation,
there is some similarity with the therapeutic dynamic. Thus, the mediator
maintains a measure of detachment from the detail and turmoil of the
parties' conflict and he or she does not enter into the dispute by taking
sides or rendering a decision about the conflict. At the same time, the
mediator must actively engage with the parties by building rapport,
actively listening to the content of their dispute, maintaining an alert
interest and intervening in ways that provide opportunities for the parties
to move towards resolution.

111 For example, interest in profit as against environmental protection.

112 Assessing possible interventions by asking 'what is in the best interests of the
participants?' was recommended to the author at a recent mediator professional
development program; and was used in the context of furthering the participants'
own decision-making.

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ETHICS IN ALTERNATIVE DISPUTE RESOLUTION

As an aid towards conflict resolution, attention is given in the

mediation literature to the opportunity provided for parties to hear
themselves and to advance any insight gained as a result. Goodhardt,
Fisher and Moloney argue that this opportunity is a core component of
transformative mediation, which they further argue has a therapeutic
equivalent in Rogerian theory." One of three basic interventions that
the transformative mediation holds in common with Rogerian therapy is
'reflection'. Reflection, according to Goodhardt et al has three purposes:
(1) it allows a party to be heard and know that they have been heard;
(2) it allows a party to hear their own words in the same way as the
other party has heard them, thus enabling insight into the impact
of their words on another; and
(3) it gives parties a chance to refine or clarify what they have said
as a result of insight and reflection. 114
The opportunity to hear oneself extends the right to be heard, a core
principle of procedural fairness. This extension is consistent with the
aim of participant self-determination. The opportunity to hear oneself is
potentially an aid in reviewing and revising existing understanding both
of oneself and the other party. Hearing oneself can reveal unconscious
yet driving emotions, thoughts and impulses that can block constructive
conflict resolution. Hearing oneself can facilitate clarity around what is
an acceptable outcome, what interests can be compromised and what
interests are paramount.
The role of the therapist was traditionally understood as one of neutral
intervener, whose task was to facilitate the self-actualisation of the
patient. One criticism of this approach has been that it fails to acknowl-
edge the fact that the therapist's value system influences interpretation
of the patient's situation. Therapists, like mediators, cannot be said to
be neutral in any absolute sense. From an examination of modernist,
Freudian conceptions of neutrality through to postmodern intersubjective
and relational orientations, Baker, a psychoanalyst, proposes an alter-
native in his construction of a 'neutral position'. The neutral position,
according to Baker, is:
[N]either a given prescription nor a set of instructions. It does not refer to
any action, activity, or behaviour undertaken by the analyst. Neither does
it embrace anonymity, non-responsiveness, silence, coldness, aloofness, or
disinterest."'
The neutral position is essentially an attitude in an interactive, intersub-
jective space, which places responsibility on the analyst as the 'keeper and
conscience' of the process. 116

113 Ian Goodhardt, Tom Fisher and Lawrie Moloney, 'Transformative Mediation:
Assumptions and Practice' (2005) 12(2) Journalof Family Studies 317.
114 Ibid 320.
115 Ronald Baker, 'Finding the Neutral Position: Patient and Analyst Perspectives'
(2000) 48(1) Journal of the American PsychoanalyticAssociation 129, 140.
116 Ibid 148.

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 ETHICS IN MEDIATION: CENTRALISING RELATIONSHIPS OF TRUST

The neutral position advanced by Baker resonates with mediation

practice because both the process of therapy and that of mediation have
as their purpose the self-determination of participants. Psychotherapy,
like mediation, brings professional expertise to the task of facilitating
and harnessing participants' own resources in an effort to aid resolution
of internal and or external conflict. In keeping, however, with rejection
of the concept of neutrality in mediation, Baker's neutral position can be
substituted by the 'other focus' of the mediator. Baker lists a number of
ethical principles required of this 'other focus', which have immediate
applicability for mediation. According to Baker, the therapist:
(1) does not take sides in considering the patient's conflicts;
(2) does not impose values on the patient but instead accepts the
patient's values;
(3) does not try unilaterally to make things happen and is nondi-
rective, eschewing out of principle any attempt to influence the
patient toward change;
(4) is non-judgemental towards the patient and those in the patient's
life;
(5) subordinates his or her personality to the analytical task; and
(6) repudiates any adversarial notion of the analytic relationship. 1 7
By substituting 'parties' for 'patient' and 'mediator' for 'therapist', each
principle can be applied to the relationship between mediator and parties.
Not taking sides, the first principle, is the literal, popular meaning of
impartiality. It encompasses the absence of bias or vested interest, and
alignment with either party. Impartiality is clearly encompassed by the
next four characteristics, according to which the mediator does not intrude
by imposing his or her own values on parties, does not direct the parties
towards any outcome constructed by the mediator, does not judge the
parties in terms of 'right' or 'wrong' and, while contributing to the process
in an individually unique way, aligns that input according the principles
attached to the mediator's role rather than manifesting an individual
personality. Furthermore, each of these characteristics emphasises the
primacy given to the parties' interests and their capacities to be self-
determining, through accepting parties' values, avoiding influencing them
towards change, adopting a non-judgemental attitude and subordinating
the mediator's personality to the task of furthering the parties' interests.
Adopting a non-judgemental attitude is a core skill in therapeutic
interventions adopted and adapted in mediation.1 18 It means communicat-
ing no opinion as to whether either party is right or wrong, no opinion as
to whether the parties' behaviour is blameworthy or exemplary, and no
opinion as to whether the parties' values and opinions are acceptable or
not. It may be that, according to the context in which mediation occurs,
particularly a statutory setting, certain consequences flow for the parties

117 Ibid 140.

118 Ruth Charlton and MS Dewdney, The Mediator'sHandbook: Skills and Strategies
for Practitioners(LawBook Co, 2nd ed, 2004) 297.

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ETHICS IN ALTERNATIVE DISPUTE RESOLUTION

from particular attitudes, values and behaviours. However, the 'other

focus' of the mediator requires that his or her personal judgements do
not intrude into the encounter. Adopting a non-judgemental attitude is
consistent with Baker's sixth and final principle, namely, repudiating any
adversarial conception of the therapeutic relationship. This is immediately
relevant to mediation as an alternative to adversarial processes. It points
to a minimisation of an adversarial approach between parties, as well as
between the parties and the mediator.

VII CONCLUSION
Traditionally neutrality in mediation meant that a mediator was neutral
as to the content and outcome of mediation but in control of the process.
In theory, the mediator's control of the process ensured procedural fair-
ness; and the participants' control of the content and outcome ensured
substantive fairness, which was equated with participants' opportunity
to reach their own decisions, or to be self-determining.
In reality, research has revealed that the distinction between process
and content is not absolute, that a mediator cannot be absolutely neutral,
and that each participant cannot be absolutely self-determining. In view of
these realities, mediation's claims to fairness are significantly jeopardised.
Abandonment of neutrality as an ethical principle in the revised
NMAS signals rejection of an absolute approach and acknowledgement
that mediation and mediators are not value free. Self-determination
remains the central ethical principle of practice. Fostering self-determi-
nation is mediation's proper purpose. Recognising that self-determination
cannot be achieved without taking into account the relative positions of
participants opens the door for consideration of issues of substantive fair-
ness. Traditional reliance, however, on the distinction between process
and content is neither adequate nor sufficient to reframe the role of the
mediator with issues of substantive justice in mind. This is because reli-
ance on that distinction effectively limits mediators to addressing issues
of procedural fairness only.
As an alternative, the relationship of trust between mediator and
participants is proposed as a suitable and defensible organising principle
for ethical practice in mediation. As an organising principle, the rela-
tionship of trust has immediate generality and appeal across models of
practice and across professional identities within practice. Relationships
represent a fluid and dynamic construction of the interaction between
mediator and parties and are not limited to carving up the encounter
into elements of process, content and outcome. Relationships of trust are
clearly established as integral to mediation's character and measures of
its success. A relationship of trust is furthermore central to professional
relationships and signals the 'other focus' of the professional in applying
her expertise in the service of her client.
The particular character of the relationship of trust between
mediators and participants can be constructed by looking to the nature

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 ETHICS IN MEDIATION: CENTRALISING RELATIONSHIPS OF TRUST

of professional relationships and the socio-legal influences on mediation's

establishment as a profession. In substitution for neutrality, impartial-
ity marks the 'other focus' of the mediator in relation to participants.
Impartiality is construed as a principle that seeks to limit rather than
absolutely eliminate bias. Impartiality also means ensuring that owner-
ship of the dispute and its resolution remains with the parties, in other
words, that mediation is client-centred.
The 'other focus' of the mediator means acting in the best interests of
parties consistent with the principle of self-determination. Impartiality
translates the mediator's 'other focus' into practice. Drawing on the nature
of professional relationships of trust, it means an objective stance in which
the impact of the personal situatedness of the mediator is minimised.
Drawing on the nature of fiduciary relationships, impartiality means
exercising power for a proper purpose, namely, furthering the self-
determination of participants. It also means avoiding conflicts of interest
and acting impartiality as between the parties. Drawing on therapeutic
relationships, impartiality means not taking sides, not directing partici-
pants towards any outcome, not imposing personal values, not imposing
any judgement (as an outcome or as an attitude), avoiding an adversarial
approach and putting aside one's personality in furtherance of the task
at hand. Furthermore, by adding the opportunity to hear oneself (central
to therapeutic relationships) to the opportunity to be heard in mediation,
procedural fairness is extended and shaped to fit mediation practice.
The principle of acting in the best interests of participants, as a
requirement of relationships of trust, can be substituted for mediators'
attempts to determine their interventions according to process but not
content. As a general rule, the best interests of participants will coincide
with optimal opportunities to be self-determining. Exceptions will occur
where an optimal opportunity for one participant to be self-determining
results in manifest unfairness for the other. In such circumstances
objective measures of substantive fairness have a place in balancing the
interests as between parties, and in balancing the interests of parties in
relation to standards of the community/society of which they are a part.
Employing relationships of trust as a framework for ethical mediation
practice, in substitution for reliance on the distinction between process
and content, enables issues of substantive fairness to be openly recognised
and debated. It remains for society at large and the mediation community
as officers of the public good to articulate what standards of substantive
fairness properly apply.

63