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Mediating thru power imbalances and entrenched positions

  • 1.  Mediating thru power imbalances and entrenched positions

    I'mLinkedIn
    Posted 08-03-2022 04:48 PM

    These two overlapping posts review the trend  in mediator interaction and involvement in party self-determination
    OVERVIEW
    1.The Impartiality – Self-determination Paradox in Mediation.
    Mediation allows two human beings with a grievance, a dispute or in conflict to eyeball, speak, hear and listen to each other, aiming for an amicable solution. A third person in the room , is the mediator, who, using wisdom, knowledge, skills, compassion, body language and carefully chosen words, is able to create for the disputants, with their deeply rooted convictions, wants, needs and expectations, a "caring conversation"[1]. Pfetsch would hold that an interested, caring third party would act at an equidistance from each of the disputants and take an active equal role within the conversation.

     Into this intimate triadic ("talking with") relationship was imposed, successively, the ethical principles of neutrality (pre 2015) and impartiality (post 2015) from the mediator and self-determination (autonomy) for the disputants. Party self-determination followed.  Field and Crowe[1] in their recent book , 'Mediation Ethics: From Theory to Practice' espouse an elaboration of  party self-determination that allows ethical shifts in mediator neutrality/impartiality , in attempts to protect and balance power imbalances and self-development and mutuality in both disputants:

    2. A new ethical principle for mediators: defence against unjust enrichment

    Mediation is a resolution process, in the shadow of the law, that is "by the people, with the people, from the people"[1]. "From the people" implies a connection to the mores, social, cultural, ethnic, gender, racial and contextual attitudes, expectations, needs and rights of the disputes/mediatees, all of which are  changeable. Mediators, being "of and with the people", can understand and relate to disputants' psycho-socio-political systems . Moreover, the professional requirements and ethics of mediators and mediation can change, albeit more slowly, to any changes. Such responses are usually in advance of any legal changes to law. The rise of the rights movements and the dissembling of Western democracy have caused difficulties (and delays in reassessment) for mediators and mediation, particularly within two of the principal ethics[2]: Autonomy and Justice.

    1. …"culture (a composite of the customary beliefs, social forms, and material traits of a racial, religious or social group) is not static and autonomous, and changes with other trends over passing years"[3]
    2. "When the community is divided and diversified, and groups and classes and interests, understanding each other none too well, have conflicting ideas of justice, the task is extremely difficult."[4]

     An emerging trend affecting Autonomy and Justice is an increasing fixed mindset, unreal worldview and resistance to negotiation/settlement under the broad umbrella of 'unjust enrichment'[5].
    This article takes the position that mediation, in the shadow of the law, does not have to follow the travails of unjust enrichment becoming law. Common sense suggests that the concept of a person unjustly "ripping someone off" and hurting that person,  is the antithesis of fair play and common justice. As such, protection of one mediatee from another mediatee's unjust enrichment can easily fit into a fair and just principle within mediation

    This article is not a legalistic exposition, perspective, argument or adjudication /judgement on unjust enrichment, merely an observation of a not-well-known behaviour, and potential failure-to-settle outcome in mediation.



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    David Mitchell
    Director
    Mitchell Mediate
    Clarence Park SA
    0418898039
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    Attachment(s)

    docx
    Unjust enrichment.docx   32 KB 1 version


  • 2.  RE: Mediating thru power imbalances and entrenched positions

    I'mLinkedIn
    Posted 21-03-2022 02:27 PM
    Fantastic article.
    I once worked for an organisation where disputes were solved on the basis of power. (the boss always wins).
    Thankfully that has changed.

    ------------------------------
    Anthony Photiadis]
    Solicitor
    N/A
    Chapel Hill QLD
    733787161Anthony
    ------------------------------



  • 3.  RE: Mediating thru power imbalances and entrenched positions

    Posted 23-03-2022 05:30 PM
    Edited by Lyndon White 23-03-2022 05:32 PM