What Is An Ethical Dilemma?
There are many definitions of mediator “ethical dilemmas.” One helpful definition is provided by Robert A. Baruch Bush
in “The Dilemmas of Mediation Practice”, where he describes it as “a situation in which you felt some serious concern
about whether it was proper for you as a mediator to take a certain course of action.” Ethical dilemmas arise from three
main sources for mediators:
2When a mediator standard of conduct conflicts with a personal belief or value. Example: in mediating a custody and visitation case the parties are making decisions on
behalf of their children with which you have an
extremely strong personal disagreement (as
a parent yourself)– your personal values may
conflict with the Standard of Impartiality, if the
disagreement means that you are unable to
conduct the mediation in an impartial manner.
3When a standard of conduct conflicts with standards applicable to another profession practiced by the mediator. Example: you are a mediator and also an attorney. During a mediation in which you are serving as a mediator,
a party’s attorney commits an unethical act during caucus. As a lawyer, you are required by state bar rules to
report unethical behavior by another lawyer, but the mediation agreement and the ethical standards prohibit you
from conveying any information obtained during a private session without the consent of the disclosing party.
1When two or more mediator standards of conduct are in conflict with each other. Example: The information one party has revealed
to you during private session suggests she may
not be mentally competent to participate, and
may be a danger to herself. To protect her you
would like to disclose to the other party, her
father, which sets the Standards of Confidentiality
and Quality of the Process in opposition.
Ethics Committee Process
In considering a question, the ACR Ethics Committee looks at issues such as the following:
• What are the
• What is the
source of the
• Who are the
what are their
• How does the
action to resolve
• What impact
on the mediation
• What is the level of guidance that
must be met in order to satisfy
the standard (“Shall” the mediator
do something? “Should” the
mediator do something? or “May”
the mediator do something)?
The following is an example of how the
ACR Ethics Committee might address an ethical dilemma:
The Committee would consult the 2005 Model Standards and
might conclude that the ethical standards of self-determination,
impartiality, confidentiality and quality of the process are all relevant
to the inquiry.
• The Standard of Self-Determination (Standard I) is
implicated because, without knowing the party’s intentions
toward complying with the agreement, the other the party
may not be able to make a “free and informed” choice.
I am mediating a commercial case and
during a break I overhear one of the
parties on his phone stating that he has no
plans to comply with the agreement after
it is reached. Can I let the party know what
I overheard him say during the break and, if
he won’t tell the other party, can I?