The invitation to republish here the report on my study of mediators\u27 ethical dilemmas was a very gratifying one. My hope was that this report would generate further thought and discussion on this important subject, and this symposium will certainly help to realize that aim. For this I am grateful to the editors of the Journal and their advisor, Professor Leonard Riskin. Moreover, the best part of this invitation was that it contemplated the publication of comments on the report from a number of well-known and thoughtful figures in the mediation field. This kind of public dialogue is something all scholars hope for, and I am pleased that it has occurred with this report. Waiting to read what the commentators had to say has involved some sense of anticipation, partly in wondering what they might find problematic in the study, but also - and moreso - in looking forward to what their comments would add to my own understanding of the issues. The wait has been well rewarded. With only a few qualifications, my view is that these comments genuinely advance the discussion of the issues addressed in the repor

Bush, Robert A. Baruch

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University of Missouri School of Law

Journal of Dispute Resolution Volume 1994 Issue 1 Article 9 1994 Reply to the Commentators on the Ethical Dilemmas Study, A Robert A. Baruch Bush Follow this and additional works at: https://scholarship.law.missouri.edu/jdr  Part of the Dispute Resolution and Arbitration Commons Recommended Citation Robert A. Baruch Bush, Reply to the Commentators on the Ethical Dilemmas Study, A, 1994 J. Disp. Resol. (1994) Available at: https://scholarship.law.missouri.edu/jdr/vol1994/iss1/9 This Conference is brought to you for free and open access by the Law Journals at University of Missouri School of Law Scholarship Repository. It has been accepted for inclusion in Journal of Dispute Resolution by an authorized editor of University of Missouri School of Law Scholarship Repository. For more information, please contact bassettcw@missouri.edu. A REPLY TO THECOMMENTATORSON THE ETHICAL DILEMMASSTUDYRobert A. Baruch BushThe invitation to republish here the report on my study of mediators' ethicaldilemmas was a very gratifying one. My hope was that this report would generatefurther thought and discussion on this important subject, and this symposium willcertainly help to realize that aim. For this I am grateful to the editors of theJournal and their advisor, Professor Leonard Riskin. Moreover, the best part ofthis invitation was that it contemplated the publication of comments on the reportfrom a number of well-known and thoughtful figures in the mediation field. Thiskind of public dialogue is something all scholars hope for, and I am pleased thatit has occurred with this report. Waiting to read what the commentators had tosay has involved some sense of anticipation, partly in wondering what they mightfind problematic in the study, but also - and moreso - in looking forward towhat their comments would add to my own understanding of the issues. The waithas been well rewarded. With only a few qualifications, my view is that thesecomments genuinely advance the discussion of the issues addressed in the report.Joseph Stulberg points out that many of the dilemmas stem from conflictsbetween mediators' possible roles, and that absent a clear conception of themediator's role, it is hard to resolve these dilemmas or even agree on whatconstitutes a real dilemma.' These are solid points; but I disagree with hisconclusion that, as a result, the study does not further the debate over the mostfruitful conception of the mediator's role. Rather, it adds to that debate in twoways: by demonstrating what Stulberg himself points out - the pressing need forgreater clarity and consensus about the mediator's role, in order to resolve or evendefine dilemmas; and by suggesting that the widespread concern about certaindilemmas, especially that concerning self-determination v. directiveness,2 indicateswhere the tensions in the mediator's role are greatest and where our efforts atclarification and consensus should therefore be concentrated.Stulberg and Linda Stamato both express concern about the report'sconclusion that policyrnakers should take greater responsibility for providingmediators guidance in this area.' I find myself largely in agreement with theirmain points - that training offers a better means of providing guidance than rigid1. Joseph Stulberg, Bush on Mediator Dilemmas, 1994 J. DISP. RESOL. 57, 59-61.2. See Bush, The Dilemmas of Mediation Practice: A Study of Ethical Dilemmas and PolicyImplications, 1994 J. DISP. RESOL. 1, 22, 42.3. Stulberg, supra note 1, at 63-65; Stamato, Easier Said Than Done: Resolving EthicalDilemmas in Policy and Practice, 1994 J. DISP. RESOL. 81, 83-84, 86.1Bush: Bush: Reply to the Commentators on the Ethical Dilemmas StudyPublished by University of Missouri School of Law Scholarship Repository, 1994JOURNAL OF DISPUTE RESOLUTIONstandards, and that guidance should come from those within the field itself ratherthan outside public authorities. I don't think the report's conclusions contradictthese points, but some clarification is obviously called for. First, the reference to"policymakers at the program, the state, and the national level" in my call formore guidance,4 need not mean outside public authorities uninvolved in themediation process, but rather those in the field itself who occupy official orinformal leadership roles at all three levels. 1 think everyone would agree thatguidance can and should be expected from this source. Moreover, that leadershipwithin the field can act to educate outside public authorities about what mediation(and mediators) can and cannot effectively do, and should and should not beexpected to do.Second, the report itself emphasizes training as the most important type ofguidance needed.5 The further reference to standards, and the proposed standardsappended to the report, grew out of a sense I have gained, after severalpresentations of this material to mediators, that once you raise the questions ordilemmas, practitioners have a burning desire to hear suggested answers. In short,training itself has to involve not only identifying questions, but suggesting possibleanswers; and doing that requires some reference point. Standards can provide sucha reference point for both training and conduct - especially when framed onlyas guidelines and not rigid rules - if they are based on a coherent conception ofthe mediator's role, and accompanied by illustrative examples. In short,articulating standards can be used as a way of helping individual practitionerswork out their own responses to dilemmas, rather than a means of prescribing (andproscribing) particular answers. However, I can see that the report might be readas going further than this and recommending a more rigid approach to the use ofstandards, and Stulberg and Stamato may be right in arguing that this would beineffective or even counterproductive.Albie Davis's comment actually provides an excellent example of the way inwhich I hoped the dilemmas (and standards) could be used for teaching andtraining. Her use of the material, in diagrammatic form, to stimulate mediatorsto disclose their own dilemmas and "confessions,"6 confirms the commonality ofthe kinds of dilemmas identified and shows how useful the typology can be inprovoking thought and discussion. Davis's approach might also suggest howsample standards could themselves be used to stimulate discussion rather thanimpose rigid norms. One can imagine a session - and I have conducted severalsince the report was first published - in which mediators consider how a givencase would be handled under the proposed standards, and then debate and discussthe appropriateness of the particular solution and the standards themselves. Usedin this way, this or any other set of standards can be an excellent training tool.4. Bush, supra note 2, at 44.5. Id, at 46-47.6. Davis, Ethics - No One Ever Said It Would Be Easy: Bush's Contribution to MediationPractice, 1994 J. DISP. RESOL. 75, 78.[Vol. 1994, No. I2Journal of Dispute Resolution, Vol. 1994, Iss. 1 [1994], Art. 9https://scholarship.law.missouri.edu/jdr/vol1994/iss1/9Symposium: Bush ReplyRichard Salem's piece is in some respects the most supportive of the fourcomments, regarding the ultimate conclusions of the report, especially the need fortraining and guidance This support is much appreciated, especially comingfrom a colleague with wide experience, whose work in the field I have longrespected. However, at the risk of seeming unappreciative for the support, I mustadmit to being surprised by an implication I found in Salem's remarks that maybe misleading and even unfair - not to the study I conducted, but to the Floridamediation community that was the subject of the study. Specifically, it seems tome that Salem's comments imply that, at least in certain respects, policymakersin Florida have been dilatory in not providing adequate guidance and training after1988 (when Florida's comprehensive statute took effect) and have lagged behindother jurisdictions in this regard. I do not believe that this is the case.A few factual clarifications may help here. Salem apparently assumes thatthe interviews for my study were done in 1992, four years after the 1988workshop that inaugurated Florida's statute. Actually, though my report wasoriginally published by NIDR in the fall of 1992, the interviews summarized inthe report were done in December 1988 - January 1989, not quite a year from thedate the Florida statute went into effect. In other words, my research reflects thestate of affairs in Florida as of 1988, not 1992.Florida has in fact done a good deal to provide guidance and training since1988.! Beginning in the surnmer of 1988, even before my research, new trainingprograms were set up for all mediators seeking court certification. By late 1989,a special committee had established standards for mediator training programs,including guidelines for training content and coverage. Around 1992, standardsof practice were adopted for court-certified mediators (on which, as the Appendixnotes, my report's proposed standards were partly based). With these and othersteps, Florida's efforts have probably gone a good deal further than those in manyother states.However, Salem suggests that the cases described in my report reflect"inadequate ... guidance and... training," and "benign neglect."9 In his firstexample, the possible domestic violence case,'0 he asks, "Why are cases beingreferred to a family mediator who has not been trained to recognize the signs of. violence or deal with them?" The question and following discussion seem toimply that Florida simply failed to provide necessary, standard skills training ondomestic violence to its mediators. Therefore, the problem is not an ethicaldilemma, but benign neglect of skills training. I disagree. The fact is that thecase described by this mediator must have occurred in or before 1988, when Iconducted the interviews. Did the absence of domestic violence training forfamily mediators, in 1988 or earlier, represent "benign neglect" of skills training7. Salem, Ethical Dilemmas or Benign Neglect?, 1994 J. DISP. RESOL. 71, 71.8. The developments mentioned in this paragraph were cited in a conversation with SharonPress, Director of the Florida State Dispute Resolution Center, May 18, 1994.9. Salem, supra note 7, at 74, 72.10. Id., at 72.1994]3Bush: Bush: Reply to the Commentators on the Ethical Dilemmas StudyPublished by University of Missouri School of Law Scholarship Repository, 1994JOURNAL OF DISPUTE RESOLUTIONin Florida - given the general state of the field at that time? The answer isclearly negative.Salem's own citation, to the Maine report on domestic violence in mediation,shows that as of 1992 in Maine, training in recognizing and handling domesticviolence cases was only a recommendation, not an actual reality." Indeed, abroader study published in 1993, which reviewed programs for mediating domesticrelations cases in several jurisdictions, concluded that• . . mediators do not have the . . . training to cope with [domesticviolence] cases, are unable to identify abuse when it is present, and... better training... is needed so that they are capable of recognizingand coping with the issues of domestic violence when it is signaled inmediation sessions.'2The authors did not find such training in operation in any jurisdiction they studied,as of the time they reached this conclusion.Thus, even though everyone now agrees that such training is important,Florida's failing to provide it, in 1988 or before, was wholly typical ofjurisdictions nationwide, including those with court-referred divorce and custodymediation. (I note that such training is now provided in Florida for certifiedfamily mediators, and has been for some time.'3) In sum, this example does notsupport an implication that Florida's policymakers have been dilatory indeveloping and providing needed skills training for mediators in domestic relationscases. Perhaps other readers will not see such an implication in Salem's comment,and in any event it may be unintended. However, in case some may read thecomment this way, I felt a clarification was in order.. Salem's larger point seems to be that better skills training - on topics likepower-balancing, empathic listening, questioning, etc. - would enable mediatorsto deal with many of the cases reported in the study as ethical dilemmas. 4Again, his view is that the problems represent not ethical dilemmas, butinsufficient skills training. I agree that some ethical questions can be obviated byadequate skills training: If a family mediator is trained in screening for domesticviolence, she has no dilemma regarding whether and how to handle cases withoutsuch training. (Although until the skills training becomes available, there is indeedan ethical dilemma, as recognized by the mediator who reported it.)However, it is important not to blur the distinction made in the reportbetween a skills question and an ethical question, or to suppose that good skillstraining will do away with ethical dilemmas and eliminate the need for trainingin how to recognize and approach them. In many situations, skills are not the issue11. Id.12. Fischer, Vidmar and Ellis, The Culture of Battering and the Role of Mediation inDomestic Violence Cases, 46 S.M.U.L.REV. 2117, 2172-73 (1993).13. Conversation with Sharon Press, supra.14. See Salem, supra note 7, at 74.[Vol. 1994, No. I4Journal of Dispute Resolution, Vol. 1994, Iss. 1 [1994], Art. 9https://scholarship.law.missouri.edu/jdr/vol1994/iss1/9Symposium: Bush Replyto begin with. Salem's third example, the depressed party case, is editedsomewhat in his comment.'5 However, reading the full version of the case 6should make it evident that power-balancing skills cannot obviate the tension inthis type of case between the values of self-determination on the one hand andfairness or justice on the other. For cases like this, and like the vast majority ofthose reported in the study, skills training alone is not enough. Training must notonly provide skills; it must also help mediators learn how to deal with situationsthat raise the question of whether to use one's plentiful skills for a certain purpose,or whether the purpose itself is improper in light of the goals and values of themediation process.One can certainly argue that policymakers in Florida have not gone farenough in providing this kind of training, and my report indeed says so. But thiscriticism applies to the entire field - as Salem himself notes at the end of hiscomment. 7 Florida should not come in for special criticism simply because itsmediation community was hospitable enough to cooperate in this study and, asDavis puts it, "confess" its puzzlements publicly. On the contrary, they deserveappreciation for this cooperation - which has provided the basis for the exchangepresented here - and so do all the commentators for the insights they haveoffered.15. Id, at 73.16. Bush, supra note 2, at 20.17. Salem, supra note 7, at 74.199415Bush: Bush: Reply to the Commentators on the Ethical Dilemmas StudyPublished by University of Missouri School of Law Scholarship Repository, 19946Journal of Dispute Resolution, Vol. 1994, Iss. 1 [1994], Art. 9https://scholarship.law.missouri.edu/jdr/vol1994/iss1/9

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