Part Two: Professional Ethics: Universal or Plural?

Readings:

Oregon Mediation Association Core Standards of Mediation Practice

“10 Rules for the Ethics of Means and Ends, from Saul D. Alinsky”

Key Dilemma of Part Two:

Are universal professional ethics necessary to protect the interests of clients, when they can be culturally biased?

Review of List of Navigation Strategies for Seemingly Intractable Conflicts, Differences, and Dilemmas:

By confronting ethical dilemmas, a conflict facilitator code of ethics is transformed, as follows:

As I suggested earlier, we, as conflict facilitators, need to move within the tension of abstraction and particularity—the transpersonal and the personal. We need to generalize and theorize to describe what all humans (or most humans) share, but then those generalizations and theories are constantly challenged by examples of individual and cultural difference, belief, and norms. In this dialectic process, we are constantly, and endlessly, refining our view of human commonality and diversity.

In the following, I use this dialectical process to explore the need for a conflict resolution code of ethics. Codes of ethics necessarily involve abstractions that generalize across individual and cultural difference. Practitioners can fear that they either follow the code or are in violation of the code. Since conflict resolution is highly sensitive to the problem of generalizing across individual and cultural difference, it seems that a code of ethics may undermine this sensitivity.

Before we come to any conclusions based on the abstract analysis above, let’s look at some specific elements of ethics that are often mentioned in regard to conflict resolution practice: confidentiality, neutrality, impartiality, informed consent, and avoiding conflicts of interest.

Confidentiality:

Confidentiality is a value that can be culturally biased. So, confidentiality is problematic as an absolute ethical standard. Like other elements of codes of ethics, context matters. The fundamental value that must be engaged is to minimize the potential harm to the client, the client’s family, and cultural circle.

Self-Determination:

Self-determination is another mainstream Euro-American notion, derived from the concept of self-interest. The presumption is that if we allow others to help us determine our position in a conflict, then we are not living up to our responsibility of fully making our own decisions. That responsibility is, in turn, derived from the individualist idea that each person is radically alone, and not connected to others. Many peoples outside of this tradition believe that each person is radically connected to others, and therefore, must balance their self-interest with the interest of others, with whom they identify–hopefully including opposing disputants.

Informed Consent:

Shouldn’t disputants know what kind of conflict resolution process to which they are consenting? One concern is that it is always difficult to know if disputants’ consent really mean that they know to what they are consenting. Furthermore, in processes that are traditional and public, informed consent would be odd indeed? How would you ask people in those cultures whether they understand their own cultural traditions?

Fees Effect on Impartiality:

Mediators customarily charge fees for their services, unless they are willing to work as volunteers. However, fees are problematic when they are paid by one of the disputants, and not the other. Fees are problematic because the mediator may be, or may appear to be, working for the interests of one disputant, and not the other. Though the mediator may be able perform their duties as a neutral in completely unbiased ways, the disputant who is not paying for the mediator may reasonably suspect that the mediator is biased towards the interests of the disputant who is paying for the mediation. I was a disputant in a mediation, where the mediator was paid by an entity that favored an opposing disputant. I pointed this out during the mediation, and the process unraveled from there—a failed process. One way to potentially address this problem is to create a neutral fund for mediation, where the disputants are not disempowered by who manages the fund.

Neutrality and Impartiality:

Again, these notions are key to conflict resolution codes of ethics in mainstream Western culture. Neutrality and impartiality mean that the conflict facilitator is not going to take sides with one disputant against the other. The problem is that disputants may perceive favoritism in the conflict facilitator, even when it is not consciously intended.

Another way to conceive of this concern is for the conflict facilitator to advocate a conflict process that is designed to be neutral. However, specific conflict processes may not be perceived as neutral by the disputants. For example, in many cultures, disputants want the advice and direction from the conflict resolver. Advice and direction are hardly considered to be part of a neutral or impartial process in mainstream American culture.

Since every conflict facilitator has a particular social position, social conditioning gives the facilitator an implicit bias. Additionally, disputants might have an implicit bias toward the conflict facilitator. Both directions of bias undermine any supposed neutrality or impartiality. Therefore, the conflict facilitator must repeatedly examine the dynamics of the ongoing collaboration to make sure that the negotiating table remains level. This means that the conflict facilitator must regularly check in with disputants to get their perspectives on the balance of power and authority. Keeping track of body language to monitor any anxiety is also important.

The goal is to create a process that feels fair and considerate of the disputants need to constructively address a conflict or dispute. How conflict facilitators address this goal will depend on how well they manage all of the intangibles of a conflict. In this regard, expertise depends on being mindful of all the ways that a conflict process can get off track. Experience, combined with regular consultation with conflict professionals, will build expertise over time.

Conflicts of Interest:

A conflict of interest occurs when a conflict facilitator has multiple interests (financial, status, or personal, etc.), and when an outside interest has the potential to undermine the conflict facilitator’s central responsibility to disputants and clients.

An example of a conflict of interest is the fact that the Oregon judges who rule on proposed changes to public service benefits are also designated recipients of those benefits after they retire. How can those judges fairly rule on the constitutionality of the proposed benefit changes, if the judges might potentially lose benefits with certain decisions? Would these judges rule against their self-interest? If we believe that their decisions are squarely based on constitutional law and a clear conception of the public good, then they would demonstrate that the conflict of interest was not detrimental to fair decision-making. Do we believe that? If we believe that people basically make decisions and take positions in conflicts on the base of self-interest, then we should be suspicious of these judges’ conflicts of interest. We could demand that such judges have a different retirement package that would avoid the appearance of potential impropriety. The Oregonian wrote an editorial examining this problem.

A common potential conflict of interest for conflict facilitators is when they are hired by management to help address a conflict where the management has an interest in how the employee conflict turns out. Disputants seem justified in being suspicious that conflict facilitators have the appearance of potential impropriety when they are being paid by management. To prevent this conflict of interest, management must convince the conflict facilitator and the disputants that management has no interest in the outcome of the conflict process. This convincing may be difficult if management has a history of duplicity. A further step that a conflict facilitator may need to take is to interview disputants, separately, to determine their trust level toward management’s claim of neutrality.

Purpose of Codes of Ethics:

At this point in our discussion, we might revisit the purposes of codes of ethics. If they are meant to standardize practice, then they are liable to run afoul of the cultural disjunctions mentioned above. However, there is another concern that practitioners have within many cultures. That concern is the legal problem of protecting the vulnerability of individuals against malpractice. In individualistic cultures based on scarcity-driven economic principles—such as the United States of America—individuals are quite vulnerable to predatory practices throughout the economy. In communitarian societies, where people have an engrained commitment to the public good, and a deeper knowledge of each other’s character, this vulnerability is arguably much lower.

However, whenever money is charged for a service, there is a potential for fraud or incompetence. To protect disputants from being harmed in this way, codes of ethics, along with credentialing, have been the key to enforcement of certain standards of practice.

Now, with the above justification for uniform standards of practice to protect the vulnerable, these same standards generate conflicts with minority cultures and individual difference. As noted at the beginning of this chapter, this is a central dilemma in the enforcement of professional codes of ethics for any human serves. So, how can we resolve this dilemma?

An Alternate View of Codes of Ethics:

One possible alternative is to assert a code of ethics that stresses the relational virtues of good will, compassion, empathy, humility, generosity, forgiveness, and gratitude. However, who is to be the judge of whether these virtues have been a part of the conflict resolution process, or not? Relational virtues are experienced quite personally, and do not generate much irrefutable evidence. Furthermore, a conflict resolver could have relational virtues, and still be incompetent. On the other side of the equation, a conflict resolver could have few or no relational virtues, and still be competent at conflict resolution.

Evidence of Violations of Professional Codes of Ethics:

Individual virtues, like confidentiality, neutrality, conflicts of interest, and informed consent can generate evidence. In other words, the lack of confidentiality, neutrality and informed consent can be shown with evidence. In Western mainstream culture, evidence is needed to monitor competence and protect the vulnerable, so it seems like we are stuck with the individual behaviors that generate evidence as the basis for a conflict resolution code of ethics—unless we could have codes of ethics that are in synch with different cultures. Then we are left with the problem of addressing the peculiarities of individual differences, as well as unusual circumstances that seem to require breaking the standard codes of ethics. This view suggests that professional codes of ethics need to evolve with multicultural input and restorative justice processes that protect clients, as well as protect the cultural integrity of practitioners and the culturally appropriate conflict processes that they facilitate.

Discussion Questions:

1. How are we going to have legitimate exceptions to the code that are not rationalizations for incompetence and predation?

2. What is the distinction between moral strength and moral weakness?

3. What is moral agency?

4. How does groupthink affect professional ethics?

5. How does relativism affect professional ethics?

6. How does determinism affect professional ethics?

7. How does faith and fate affect professional ethics?

8. What is the distinction between financial strength and moral strength?

9. How does navigating difference transform professional ethics?

10. How can we deepen our conscience through diverse dialogues?