Can a mediator create a balance between self-determination and

procedural and substantive fairness – A discussion on an

ethical framework for decision making

Outline of my Presentation

•Margaret’s story

•What are ethics

•Philosophers who can help decide an ethical issue

•Formula for deciding an ethical issue

Margaret’s Story •90 year old lady who lives alone

•She recently had a hip replacement and self discharged from hospital

•Has been living alone in her own home and “fired” the community services

•She has recently installed Foxtel but does not use it

•Her only son, Bill, lives in the same town and visits twice a day but his wife does not visit

•Margaret has 4 daughters – two of whom live interstate

•Her daughter Judith, is her only attorney under the Enduring Power of Attorney and lives 4 hours away

•Another daughter, Rosemary visits fortnightly

What are ethics

• Standards of behaviour that tell us how we should treat people.

• Based on:

• Values

• Morals

Mediator’s ethics •Impartiality

•Confidentiality

•Conflicts of Interest

•Quality of the Process

•Termination of the Mediation

•Publicity and Advertising

What are not ethics • Following the Law

• Following a feeling

• A religious practice

• Culturally accepted norms

• Science

How are ethical issues resolved?

There are many schools of thought including:

•Utilitarian Approach

•Rights (Deontology) Approach

•Pluralistic Deontology Approach

•Fairness or Justice Approach (Aristotle)

•The Virtue Approach (Aristotle and Plato)

•The Common Good Approach (Plato, Aristotle, Rawls)

For further information see Markkula Center for Applied Ethics http://www.scu.edu/ethics

Five Step Ethical Decision Making Framework

1.Recognise that an Ethical Issue is present

2.Get the Facts

3.Evaluate Alternative Actions

4.Put the decision through the mediator’s decision test

5.The Mediator’s Self Care

Step 1 – Recognise the ethical issue

•What is the ethical issue?

In practice, the ethical issues may be identified as a factor that is impinging on a principle of mediation

•What are the factors involved?

Ethical Issues Raised during Intake

• Autonomy and Diminished capacity

• Autonomy and Power Imbalance

• Confidentiality and Substantive Fairness

• Impartiality of the mediator and assisting the elder

• Conflicts of interest

Step 2 – Get the facts

•What are the relevant facts of the case?

•What facts are not known?

•Can I learn more about the situation?

•Do I have enough knowledge to make a decision?

•Are there other individuals who may have an important stake in the outcome?

Questions to consider during intake

• Capacity

• Communication problems

• Cognitive issues

• Is there unresolved family conflict?

• Are there signs of elder abuse?

Information Provided during Intake

Margaret’s Story

•Margaret is very pious and attends Mass daily

•Margaret assumed the raising of Rosemary’s child when he was a baby – unbeknown to the rest of the family

•Bill has been informed by the local policeman that there has been a complaint about Margaret’s driving

•Margaret insists that she is a safe driver who can look after herself

•Bill’s wife no longer visits Margaret because she is rude and aggressive towards her

•Margaret phones Bill frequently during the day asking for help

Ethical Issues in Margaret’s Case

•Autonomy and diminished capacity

•Autonomy and power imbalance

•Confidentiality and Substantive Fairness

•Impartiality of the Mediator

Margaret’s Autonomy v Margaret’s Capacity

Ethical issue

•All parties to the conflict should attend and participate.

But

•What if Margaret is feeling scared, vulnerable and isolated and is worried that her family is cross with her?

•What if the children are fighting amongst themselves?

Is it in Margaret’s best interests to attend?

Step 3 – Evaluate Alternative Actions

•Does the decision produce the most good and do the least harm? (The Utilitarian Approach)

•Does the decision respect the rights of all who have a stake? (Rights (Deontology) Approach)

•Will the rights of one person trump the rights of another? (Pluralist Deontology)

Markkula Center for Applied Ethics http://www.scu.edu/ethics viewed 25 May 2014

• Which option best serves the family and the community as a whole, not just some members of the family? (The Common Good Approach)

• Which option treats all members of the family equally or at least proportionately? (The Justice Approach)

• Which option leads me to act as the sort of person I want to be? (The Virtue Approach)

My Options in Margaret’s Case

What are the choices/options

•Margaret attends a group mediation

•Margaret does not attend the mediation

•Margaret attends for part of the mediation or the mediation is conducted in a number of sessions.

What is the best option?

Step 4 – Apply the Mediator’s Decision Test

•If I told another mediator, mentor or supervisor the option I have chosen, what would they say?

Step 5 – The Mediator’s Self Care

•Reflect on how my decision turned out.

•What have I learnt from this experience?

Thank You