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Mediation Ethics: Cases and Commentaries

ISBN: 978-1-118-00134-9
448 pages
February 2011, Jossey-Bass
Mediation Ethics: Cases and Commentaries  (1118001346) cover image

Mediation Ethics is a groundbreaking text that offers conflict resolution professionals a much-needed resource for traversing the often disorienting landscape of ethical decision making. Edited by mediation expert Ellen Waldman, the book is filled with illustrative case studies and authoritative commentaries by mediation specialists that offer insight for handling ethical challenges with clarity and deliberateness.

Waldman begins with an introductory discussion on mediation's underlying values, its regulatory codes, and emerging models of practice. Subsequent chapters treat ethical dilemmas known to vex even the most experienced practitioner: power imbalance, conflicts of interest, confidentiality, attorney misconduct, cross-cultural conflict, and more. In each chapter, Waldman analyzes the competing values at stake and introduces a challenging case, which is followed by commentaries by leading mediation scholars who discuss how they would handle the case and why. Waldman concludes each chapter with a synthesis that interprets the commentators' points of agreement and explains how different operating premises lead to different visions of what an ethical mediator should do in a given case setting.

Evaluative, facilitative, narrative, and transformative mediators are all represented. Together, the commentaries showcase the vast diversity that characterizes the field today and reveal the link between mediator philosophy, method, and process of ethical deliberation.

Commentaries by

  • Harold Abramson

  • Phyllis Bernard

  • John Bickerman

  • Melissa Brodrick

  • Dorothy J. Della Noce

  • Dan Dozier

  • Bill Eddy

  • Susan Nauss Exon

  • Gregory Firestone

  • Dwight Golann

  • Art Hinshaw

  • Jeremy Lack

  • Carol B. Liebman

  • Lela P. Love

  • Julie Macfarlane

  • Carrie Menkel-Meadow

  • Bruce E. Meyerson

  • Michael Moffitt

  • Forrest S. Mosten

  • Jacqueline

  • Nolan-Haley

  • Bruce Pardy

  • Charles Pou

  • Mary Radford

  • R. Wayne Thorpe

  • John Winslade

  • Roger Wolf

  • Susan M. Yates

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Preface.

Acknowledgments.

1 Values, Models, and Codes.

2 Autonomy and Diminished Capacity Commentators: Carol B. Liebman and Mary Radford.

3 Autonomy and the Emotions Commentators: Dorothy Della Noce and John Winslade.

4 Disputant Autonomy and Power Imbalance Commentators: Forrest S. Mosten and Bill Eddy.

5 Tensions Between Disputant Autonomy and Substantive Fairness: The Misinformed Disputant Commentators: Lela P. Love and Jacqueline Nolan-Haley.

6 Information, Autonomy, and the Unrepresented Party Commentators: Michael Moffitt and Dan Dozier.

7 Mediating on the Wrong Side of the Law Commentators: John Bickerman, Jeremy Lack, and Julie Macfarlane.

8 Mediating with Lies in the Room Commentators: Dwight Golann and Melissa Brodrick.

9 Confidentiality Commentators: Bruce Pardy and Charles Pou.

10 Confidentiality Continued: Attorney Misconduct or Child Abuse Commentators: Art Hinshaw and Gregory Firestone.

11 Conflicts of Interest Commentators: Bruce E. Meyerson, Wayne Thorpe, Roger Wolf, and Susan Nauss Exon.

12 Mediating Multiculturally: Culture and the Ethical Mediator Commentators: Carrie Menkel-Meadow and Harold Abramson.

13 Ethics for ADR Provider Organizations Commentators: Phyllis Bernard and Susan M. Yates.

Appendix: Model Standards for Conduct of Mediators.

Notes.

The Editor.

The Contributors.

Index.

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Ellen Waldman is a professor of law who teaches, lectures, and trains in the area of mediation and health care ethics. She is the founder and director of the Mediation Clinic at Thomas Jefferson School of Law in San Diego and has published extensively on mediation, bioethics, and other related topics. She has mediated a wide variety of disputes and serves on private and public health care ethics committees.

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In her intriguing book, Mediation Ethics: Cases and Commentaries, Professor Ellen Waldman offers the mediation profession an opportunity to explore ethical conundrums in a most innovative and instructive way. Drawing on the problem-based approach to ethics native to other professions, she sets forth numerous ethical challenges that illuminate the grey areas often confronted by mediators. Professor Waldman deftly identifies those dilemmas that elude easy answers and her problem method encourages the reader to move beyond an articulation of mere rules to a more profound comprehension of the real difficulties inherent in practice.

Professor Waldman's problem-based method offers a special bonus; many of the "commentators" are experts in their own right who bring long years of study, scholarship, and practice to their discussions. Mediation Ethics makes clear that even "experts" differ as to the 'correct' way to proceed and that what practicing mediators require most when confronting ethics puzzlers is nuanced judgment and a clear understanding of what is at stake. Mediation Ethics takes us a long way toward this sort of judgment and understanding and should be required reading for practitioners, academics, and trainers alike.
Kimberlee K. Kovach is the Director for The Frank Evans Center for Dispute Resolution and serves as the Distinguished Lecturer in Dispute Resolution at South Texas College of Law

Ellen Waldman’s Mediation Ethics is a brilliant tapestry. With sophistication and clarity, it details, analyzes and embroiders a series of case studies using rules, mediation models, and the insights of many leading mediators and commentators. A wonderful synthesis of the theoretical and practical, it should be required reading for anyone who mediates or who uses, teaches, regulates, or studies mediation.
Leonard L. Riskin, Chesterfield Smith Professor of Law, University of Florida Levin College of Law

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