This post previews Rachael Field and Jonathan Crowe’s forthcoming book, Mediation Ethics: From Theory to Practice, to be published next year by Edward Elgar. The book analyses the shortcomings of current neutrality-centred approaches to mediation ethics and seeks to answer the question of what might replace them.
Mediation is becoming more and more prominent internationally as a key form of dispute resolution for legal and other disputes. In some jurisdictions, participating in mediation is a compulsory pre-filing requirement in particular kinds of legal matters. Many benefits have been claimed for mediation as a mode of resolving disputes, including its informality, flexibility, less adversarial nature and focus on the parties and their interests. The growth of this form of dispute resolution has produced a considerable academic literature, but the theoretical foundations of mediation ethics have been relatively neglected.
Discussions of mediation ethics have traditionally focused heavily on the notions of mediator neutrality or impartiality. However, this focus has been criticised in recent decades for being unrealistic and overlooking the power dynamics between the parties. There is now a significant body of academic literature questioning whether mediators can ever truly be neutral and asking whether the concept of neutrality serves to mask the mediator’s actual power and influence. A number of authors have argued that it can be beneficial for vulnerable parties if mediators are prepared to play a more proactive role in appropriate cases