What ethical procedures for divorce mediation

are suggested by a comparison to labor mediation?

Ethical Issues in
Mediation: Divorce and
Labor Compared
Pamela S. Engram,
James R. Markowitz

"How do I remain neutral if I develop a dislike for one of the

clients?" "What responsibilities do I have for any children who are
involved?" "What do I do if a wife is very powerful and the hus-
band doesn't seem to be able to say what he wants?"
All of the above are examples of common ethical dilemmas
that divorce mediators face. Any attempt to analyze such problems
is complicated by the fact that there are few universally accepted
standards or practices. The goal of this chapter is to examine some
of the ethical dilemmas that mediators face, using a comparative
approach. Since divorce mediation is so new, we chose the more
established field of labor mediation as a source of comparison.
While examining four different ethical issues, we will focus on the
similarities and differences between these two types of mediation.
By understanding more about the general ethical dilemmas of third-
party intervention, we can then begin to develop solutions to the
ethical problems of divorce mediation in particular.
J. A. Lemmon <£d.). Making Ethical Decisions. Mediation ^
Quanerly. no 8. San Fiandsco: Josse>.B3SS. June 1985. 19
20

The Current State of Ethics in Divorce Mediation

It is beyond the scope of this chapter to create a full-fledged

code of ethics for divorce mediators. In addition to the sheer mag-
nitude of the task, the great variety of approaches to divorce medi-
ation also makes a unified code of ethics an impossibility at the
present time. In divorce mediation the burden of creating, as well as
of upholding, ethical standards falls on the individual practitioner
rather than on the profession as a whole. Every practitioner brings
an individual vantage point. This multiplidtj^ of perspectives has
the potential either to enrich the field or to create a battleground,
especially on such key issues as ownership of mediation and the
development of definitive ethical guidelines. If we want to prevent
this collision course, then we must be united in our commitment to
explore ethical issues by going beyond our original training in
therapy, law, and related fields. By becoming creative thinkers, we
can avoid the temptation to engage in territorial bickering and so
look at ethics from a fresh perspective.
A comparative analysis lends itself to a re-examination of
one's original background and training and can demonstrate the
shared concerns all mediators have for ethics. A new perspective can
also help to illuminate those fields from which it would be most
useful to draw. For example, we would probably be better off look-
ing to the therapists or to human service guidelines, rather than to
labor negotiations, for divorce mediation dilemmas that involve
emotional elements like child abuse. Labor could provide us with
valuable guidance in situations diat call for mediation background,
because it focuses on the viewpoint and specific behaviors of a
neutral third party.
Finally, we hope that by discussing a cross-secdon of ethical
principles we can show the different kinds of ethical choices made
in labor and divorce mediation. The four ethical issues that we have
chosen are neutrality, confidentiality, competence, and interface
with other professionals.

A Question of Neutrality

Cbnsider the following case. Susan and Harold enter into

mediation. The mediator, Tom, diagnoses the situation as one in
which Harold is weak and Susan is powerful and has a more force-
ful manner. After a few opening remarks to the two parties, Tom
 21

calls a caucus. During the caucus, Tom attempts to empower

Harold in order to equalize the balance of power and thus, from the
mediator's view, maintain his own neutrality. After several more
caucuses, Susan concedes on an important issue and the two parties
rapidly come to an agreement.
Has the mediator been unethical by violating neutrality?
While it is tempting to draw conclusions about Tom's actions on
the basis of one's own mediation experiences and biases, solid
ethical principles must be derived from a careful scrutiny of the
mediation situation. In fact, the above case was purposely con-
structed so that it could apply to labor disputes as well as to
divorces; the clients could either be representatives of a school board
and of a teacher's union or they could be husband and wife. One of
the most important advantages of a comparative analysis is the
ability to see one's limits and go beyond personal biases. This is
particularly important in the field of divorce mediation ethics and
can be illustrated by the first case presented in the discussion of the
first ethical principle—neutrality.
Harold's and Susan's case can be used to illustrate three
major issues involved in the ethics of a mediator's neutrality. One
ethical issue is how personail biases can be handled so as not to
interfere with one's ability to maintain neutrality. For example, one
could focus on the sex of the three parties involved in the example
above and question the neutrality of the male mediator. Given that
it was the woman, Susan, who conceded, was the mediator being
neutral or did he give Harold preferential treatment because he was
male? If this were a divorce mediation situation, the question would
take on added significance because the wife has traditionally been
the lower power in the marriage, and divorce settlements have often
reflected this.
If this were a labor case, Tom's gender biases would not
create much of an ethical risk. While labor mediators may have
political preferences (pro-management or pro-labor), they usually
take the parties as they are and generally do not attempt to
empower them. This may be due to the fact that in labor disputes
the job of the negotiator is to be a representative, an agent who is
paid to be informed about and push for one side. In divorce med-
iation, the husband and the wife are usually naive, both as parties
and as representatives. Thus, while personal biases or favoritism of
one side can occur in labor mediation, in divorce mediation special
care must be taken by the mediator so as not to take advantage of
the parties' naivete.
22

Another issue that emerges from this example is the impor-

tance of the mediator's previous relationship with the parties. If this
were a labor scenario and Tom, the mediator, had known Susan for
several years, this prior relationship would not create an ethical
dilemma for Tom. In fact, their previous knowledge of each other
might help Tom he a hetter mediator and to read and interpret
signals more accurately. If this were a divorce situation and Tom
had known Susan for years, there could be an ethical problem. One
way of handling this kind of dilemma would be to disclose the
nature of this previous relationship to the other party. While labor
and divorce mediators alike would probably disclose this informa-
tion, many divorce mediators might go further and refuse to handle
the case at all because of the jeopardy to neutrality.
Finally, the outcome of the negotiation seems to be a factor
in evaluating neutrality. The situational nature of this issue again
becomes apparent. Let us say that in a labor dispute both Harold
and Susan have been hired to represent the parties. Thus, the labor
mediator need not evaluate the outcome, since part of the represent-
atives' job is to judge whether any agreements that might be
reached are in the best interests of their clients. However, in divorce
mediation, the same kind of approach cannot be taken. Ethically,
the divorce mediator does need in some sense to evaluate the final
outcome. In the case of Harold and Susan, we believe that most
divorce mediators would see ethical problems in a final agreement
providing no child support for Susan if she were unemployed and
had received physical custody of the children. Given this kind of
situation, the mediator would probably be most concerned about
the children's welfare. Some mediators would even go so far as to
state that the mediator should be an advocate for the children
(Saposnek, 1983).
But what about a divorce mediator's neutrality? Doesn't this
kind of evaluation contradict the principle of neutrality? We would
argue that it does not. Again, a comparison of labor and divorce
mediation is helpful in reaching a conclusion. In labor, the media-
tor is dealing with people who are being paid to represent their
clients and therefore does not need or want to evaluate an agree-
ment. The divorce mediator, however, usually deals directly with
the husband and the wife and can assume that they are not accus-
tomed to being representatives. The dynamics also diange consider-
ably when one is representing oneself, which creates a different
atmosphere and places added ethical responsibilities on the media-
tor. Since divorce mediators usually deal with clients directly, rather
 23

than through la^vyers in the role of representatives, a divorce med-

iator must interpret the principle of neutrality more broadly than a
labor mediator would. While the kind of evaluation that a divorce
mediator should make is still being debated, due to the newness of
the field, divorce mediators should not be considered nonneutral or
unethical. Since the need for protection of unrepresented dients is
an important issue in divorce mediation, mediods of balancing
strict neutrality and a client's need for protection must be
developed.
If it can be concluded that divorce mediators can be neutral,
albeit with a different interpretation of the term, the question then
arises of how one can implement this neutrality. Two hotly debated
issues with regard to neutrality are the use of empowerment and
caucuses.
Empowerment. The term empowerment has become part of
the new jargon of mediation. If we can define empowerment as
giving assistance to one of the parties so that both parties have
equally valued input into the decision-making process of media-
tion, then a very interesting comparison with labor mediation can
be made. In labor mediation, empowerment techniques are seldom
used. This is because labor mediators regularly deal with parties
who are of unequal power, and most have no problem with this
inequality. For labor mediators, the primary function is to have the
parties come to an agreement. Neutrality is thus often interpreted to
mean a hands-off approach when it comes to the individual parties'
needs, concerns, or differences in power. Thus, the very definition of
neutrality for labor mediators is ethically resolved only when no
tampering changes the power of the parties. This leaves the concept
of empowerment, a vital concept in divorce mediation, with no paral-
lel in the labor field, unless the definition of the term broadened.
If we redefine empowerment as "making the parties better
able to deal with each other," then it can be said that labor media-
tors empower by teaching one or both parties how to negotiate
effectively. In the above example, if Tom were talking alone with
Harold in a caucus and Harold tried to rescind a proposal, Tom
would probably educate Harold by talking about how proposals are
made and cannot be withdrawn once on the table.
In labor, the criterion for the kind of education that Tom
could give while still remaining neutral is that the result of this
education must not hurt anyone, generally the other party. In
divorce mediation, that "anyone" would include not only the
spouse but also children, grandparents, and even society (for exam-
24

pie, it is not permissible to starve the children when neither parent

can pay child support). Thus, the concept of empowerment, when
applied to divorce situations, becomes very complicated and at
times may appear in direct conflict -with, the ethical principle of
neutrality.
So how does a divorce mediator like Tom remain neutral
while empowering the husband and still being fair to the wife?
Some divorce mediators believe that empowerment is so dangerous
and is so fraught with ethical questions that it should never be used.
We believe that such a strict interpretation of ethics only copies the
labor mediation model and does not adequately reflect the divorce
situation. While recognizing that empowerment techniques must be
used with great care and that mistakes in empowerment are
extremely serious, we believe that the same basic criterion used in
labor can be applied to divorce mediation; that is, in using empow-
erment techniques, it is important to think about possible hurtful
consequences to all concerned.
In the case of Harold and Susan, if the mediator helps
Harold articulate his thoughts about his continuing role as a father,
this should not be done at the expense of Susan's ability to express
her feelings about her role as a mother. The children and their
needs also have to be considered. Notice that in this example we are
not advocating that the mediator propose a solution. A mediator
who makes a proposal in a divorce situation is likely to be express-
ing his or her own biases and may be violating several ethical
principles. Thus, empowerment is really a way of enabling the
parties or enriching their negotiations so that they better reflect
their own and their children's needs. In this sense, a careful use of
empowerment techniques could be viewed as preserving neutrality,
since the mediator does not assume that when a low-power person
agrees with a vocal spouse, the resulting agreement actually reflects
the positions of both parties. In fact, some mediators argue that not
to empower is unethical because it can result in agreements that are
the breeding ground for future trouble and harm to all concerned.
Thus, while empowerment techniques may be difficult to use and
sometimes dangerous, we believe that the idea of empowerment is
consistent with maintaining the ethics of neutrality if the mediator
analyzes the consequences of the empowerment technique in terms
of possible harm to all concerned.
Caucusing. Much of the controversy surrounding the issue of
caucusing, or meeting with each client separately in divorce medi-
ation, stems from differences in training or orientation rather than
 25

from a real debate about ethics. Ethical concerns about caucusing

center around the issue of trust Many divorce mediators have cho-
sen to avoid caucuses and meet only with both husband and wife
present because they believe that during a caucus with one spouse
the other will become mistrustful. In the example, Susan might
begin to mistrust the mediator, believing that during the caucus
Tom and Harold were rezdly discussing what an awful person she
had been in their marriage. Susan could then view the mediator as
biased in Harold's favor, creating a perception of nonneutrality.
Thus, because of lack of trust, caucusing can become an ethical
issue.
In contrast, if Harold and Susan were labor negotiators, they
would perceive Tom, the mediator, as being foolish if he did not
caucus. In labor mediation, one of Tom's primary duties would be
to meet with each party separately and transmit information and
proposals in such a way as to facilitate the development of an
agreemenL The parties believe that holding caucuses is part of a
mediator's job and would likely feel very uncomfortable and unwill-
ing to disclose if the union and the employer always met together.
The same givens do not exist in divorce mediation. However,
this does not mean that caucusing should never be used with divorc-
ing couples. When considering how caucuses should be used, the
divorce mediator must first analyze the potential benefits and costs.
Is Harold likely to really open up in a caucus? Is the information
likely to facilitate an agreement? If Harold and Susan are in joint
sessions now, what is the likelihood that one or the other might be
so hurtful in his or her remarks as to damage the mediation
process?
Once the potential usefulness of caucusing has been consid-
ered, the next question is "How can I use caucusing in such a way
as to preserve or even enhance my neutrality?" Since the divorce
mediator does not have the built-in structure that labor does, the
mediator must create a comfortable atmosphere for caucusing.
Some ways to set the stage for caucusing indude explaining what a
caucus is and how it might help the mediation process, reminding
the spouses that the mediator will remain neutral, and taking rela-
tively short caucuses at the beginning. Also, spending about the
same amount of time with each party in the causus can help to
reassure the parties of the mediator's neutrality. It is likely that the
judicious use of caucusing in divorce mediation can even enhance
the perception of neutrality and will result in inaeased trust in the
process of mediation.
26

The Ethics of Confidentiality

Confidentiality presents less complex problems in labor med-

iation than in divorce mediation. Essentially, labor mediation must
avoid revealing what occurs in negotiation, either to the press or to
the public. The labor mediator's obligation is present after a con-
tract is signed as well as while negotiations proceed.
Divorce mediators have a similar obligation to the parties.
The need to uphold confidentiality, however, must go even further.
Parties should not only be protected against disclosure of subject
matter; they should also be assured that no one will leam they are
contemplating divorce. Discussions with referral sources or other
professionals who are involved with the same clients must also be
conducted with great care. Thus, the ethical dilemmas of confiden-
tiality for divorce mediators seem to be based on the question "To
whom do I tell what?"
For example, suppose Jerry and Tanya are union and com-
pany representatives, respectively. The mediator, Paula, is caucusing
with Tanya, who makes an 8 percent wage proposal in confidence.
Paula then caucuses with Jerry. During their meeting, Paula dis-
cusses the idea of an 8 percent raise.
Has Paula violated confidentiality? The answer to this ques-
tion would depend on the way in which Tanya originally expressed
her 8 percent position. Another factor in determining the limits of
confidentiality is the way in which Paula discussed the idea of an 8
percent wage increase in her caucus with Jerry. Unquestionably,
private confidences must be respected. However, in labor negotia-
tions, all parties recognize that requests for confidentiality may be a
way to save face, a way to test the mediator's reaction, or may even
be a signal to the mediator to reveal the seaet position at an appro-
priate moment Thus, good labor mediators can ethically dance
around the issue of confidential disclosures, since good labor nego-
tiators expect them to.
In sharp contrast, divorce mediation is like a minefield of
confidentiality dilemmas. If, in the example above, Jerry and Tanya
had been husband and wife, the divorce mediator, Paula, would have
seen ethical problems in telling Jerry about Tanya's financial pro-
posal. If one uses caucuses in divorce mediation, the question of
what can ethically be told to the other spouse certainly raises issues
of confidentiality. In addition, confidentiality issues emerge with
respect to all the other parties who are involved in divorce media-
 27
tion. Telling the children what the parents said, or the parents what
a child expresses privately to the mediator, are likely to be breaches
of confidentiality. Discussing the case, even with therapists or law-
yers who are also involved with the case, also raises ethical
dilemmas.
For example, if during mediation Jerry disclosed his homo-
sexuality and Tanya agreed not to make this disclosure grounds for
a custody decision, should a mediator discuss this decision with the
clients' attorneys? How about with the children's therapist? What if
this lawyer or therapist had referred the couple to mediation origi-
nally? In all the above cases, it appears that the way out of these
situations is not to mention Jerry's disclosure. In divorce mediation,
the agenda is filled with personal issues, and the parties are often
naive negotiators (Markowitz and Engram, 1983). These factors
make the divorce mediator's ethical responsibilities with respect to
confidentiality similar to those of therapists or lawyers.
The responsibility of a divorce mediator to preserve confi-
dentiality also extends to other people involved in the couple's
divorce. Neighbors, friends, in-laws, grandparents, and the commu-
nity at large are all involved in the confidentiality question: "To
whom do I tell what?" If the person who referred Jerry and Tanya
to mediation asks Paula if Jerry and Tanya showed up and how are
they doing, confidentiality becomes an issue. If Paula sees Jerry at
a party and he does not seem to want to be recognized, but the host
asks if she knows Jerry, would not confidentiality dictate that Paula
not reveal their mediator-client relationship? What if someone
comes up to Paula at the party and says, "Did you hear JerTy and
Tanya are getting a divorce"? In all of the above situations, we
would argue that confidentiality should be protected.
It should also be mentioned that the nature of the mediator-
client relationship changes somewhat if the mediator is working for
a social service agency or is a part of the court system itself, rather
than in private practice. In such cases, if a person from another
sodal service organization or a judge were to make the referral, it
seems reasonable for the organization that made the referral to
receive some information. If a judge had told Jerry and Tanya to go
to mediation and not to come back until they had reached a deci-
sion on custody, then it would not seem to violate confidentiality
for the mediator to report that Jerry and Tanya had indeed kept
their mediation appointments. The distinction here is that the
clients are fully aware of the nature of the referral before they go
28
into mediation. Thus, for agency referrals, the confidentiality ques-
tion appears to be centered more on how much or what type of
information to divulge rather than on who can be told.
The distinction between agency and private-practice media-
tors blurs somewhat in considering the closely related area of pro-
fessional privilege. Since there is sdll no widespread agreement
about whether or how much professional privilege should be
accorded divorce mediators, the divorce mediators may have to face
this confidentiality question when presented with a subpoena to
testify in court. Since we have made a case in this chapter for a
mediator-dient relationship similar to those in therapy and law, the
guidelines of these professions (rather than those of labor media-
tion) should be helpful in establishing where the limits of confiden-
tiality are with regard to mediation clients.
Competence as an Ethical Issue
Labor and divorce mediators alike are greatly concerned
about professional competence. One problem is the amount and
type of training and experience a divorce mediator should have.
Such questions as "What is a working knowledge of the law?" and
"Are mediators practicing law without a license?" are examples of
this type of debate. Another problem involves the limits of a divorce
mediator's competence. Thus, competency issues appear to be some
of the most hotly contested issues of the growing discipline of
divorce mediation.
Concern about the ethics of competence in the field of
divorce mediation is really an attempt to answer the question
"When is it ethical to call oneself a divorce mediator?" One way to
address this question is to think of divorce mediators who have not
been competent. In this way, the qualities essential to being a "real"
divorce mediator can be identified. A frequently heard complaint
concerns the lack of proper training of some divorce mediators.
Since there is no one career path, mediators come with a variety of
backgrounds from many different fields. Attorneys and therapists
may say, "I do mediation already." Clergy may say, "I've been a
mediator for years." People with no formal training in either ther-
apy or the law may take a workshop or read an article and then
advertise themselves as mediators. These "instant experts" are of
great concern to those dealing with the ethical issue of competence
because mediation requires special skills.
Trying to identify these special skills is the next step. What
is the proper training for a divorce mediator? A comparison of third
 29

parties involved in divorce and labor disputes is very helpful here

because labor mediators also come from a variety of backgrounds
and experiences. Some mediators are lawyers, some have academic
degrees (for example, industrial and labor relations), and others
come from the ranks of labor or management Much of the special-
ized training in labor mediation is done on the job.
Some divorce mediators also acquire their skills on the job as
part of related professions—probation, therapy, or law. Many have
sought additional training in the psychological and emotional
aspects of the divorcing family, family finances, and the legal
aspects of a divorce. Given this varied background, there is disagree-
ment about the extent or appropriateness of tKe training needed to
become a divorce mediator.
One of the most commonly raised objections is that divorce
mediators are often not attorneys. Some believe that mediators with
nonlegal backgrounds are ignorant of the law and may therefore
make grave errors. In addition, some members of the legal profes-
sion have criticized those nonattomey mediators who have learned
more about the legal aspects of divorce. This criticism is founded on
the belief that divorce mediators are practicing law without a
license. In answer to the first of these objections, it would seem that
some amount of legal training is desirable. Just as a labor mediator
has a great deal of knowledge about the legalities of strikes and
lockouts, so too should the divorce mediator know about the legal
ramifications of custody or child support. It may very well be true
that some practicing divorce mediators are incompetent because of
a dearth of legal knowledge. It is hoped that, as mediation develops
into a profession, mechanisms to retrain, control, or eliminate
incompetent mediators will be established. The second criticism,
that mediators can be competent only if they are attorneys, does not
seem justified when a comparison is made with labor mediation.
Labor mediators need not be lav^ers, even though they are often
dealing with representatives who are attorneys. Although a knowl-
edge of the law is helpful in managing negotiations, the labor
mediator's job is not to be a legal representative or a judge. This,
then, sets the task of mediator apart from the task of those in the
legal profession. We believe that the same kind of job description
applies to divorce mediators, thus separating their role from the
roles of divorce lawyers or family court judges. Therefore, while
knowledge of the law is certainly desirable, it does not seem neces-
sary for a divorce mediator to be a lawyer in order to uphold the
ethical principle of competence.
30

Finally, we believe that to be an ethical mediator one must

know the limits of one's own competence. This means that media-
tors are responsible for continually updating and extending their
training. It also means knowing when to bring in outside experts or
when to make a referral. A divorce mediator may bring in a finan-
cial or tax consultant so that the couple can get expert help in
dividing the family-owned business. Parties to a labor dispute may
bring in an expert on health insurance when negotiating a complex
benefits package. Simply put, in either field of mediation it is
ethically responsible to recognize one's limits and not exceed them.

Interface with Other Professionals

If a divorce mediator abides by the principles of neutrality,

confidentiality, and competence, the ethical issues involving sudi
other professionals as the clients' lawyers or therapists do not
appear to be very difficult. Making sure that referrals are made and
establishing a working relationship with attorneys, therapists, and
sodal service agencies would seem at first glance to be the extent of
the interface issue. However, as many divorce mediators have found,
making these connections is far from easy.
In divorce mediation, the mediator often deals directly with
the husband and the wife, and not with their attorneys, although
clients may consult their lawyers during the mediation process. The
reluctance of other professionals to interact with divorce mediators
may be based on their own ethical dilemmas. A comparison with
labor mediation can demonstrate why.
The labor mediator usually interacts -with attorneys or non-
lawyer representatives as a direct part of the negotiation process «ind
should not bypass these representatives. There are at least three
reasons for this obligation. First, an experienced mediator should
not take advantage of naive parties by approaching them directly.
Second, attorneys are hired by their clients to be their representa-
tives. TMrd, the parties in labor negotiations have chosen to bar-
gain through their representatives, and the mediator should not
trick the parties out of the protection provided by this representa-
tion. In other words, attorneys are the individuals who do the actual
bargaining, and their job is to protect and inform their dients.
Predsely this kind of mindset about the ethics of representa-
tion may result in the skeptidsm that attorneys often have about a
nonrepresentative process of divorce mediation. In fact, one way to
interact with attorneys would be to require that each spouse have a
lawyer and that they bring both representatives to mediation. This
 31

structure would then resemble that of a labor mediation session.

However, we are very skeptical about representatives playing an
active part in the mediation. Tbe major reason for excluding repre-
sentatives from tbe negotiation room in divorce mediation is tbat
tbe mediator wants direct client input Moreover, divorce mediation
began as a response to tbe growing dissatisfaction of clients ivitb
tbe traditional adversary process of divorce.
Since divorce mediation is to some degree a consumer move-
ment, clients must be tbe focus of tbe process. Tbe relationsbip
between mediators and lawyer representatives must revolve around
tbe clients' needs, wisbes, and desires. If divorce mediation is to
remain responsive to consumers, it is critical tbat clients bave tbe
cboice of wbetber or not to use individual attorneys and of wbat
role, if any, tbeir lawyers sbould play in mediation. Tbus, divorce
mediation, in contrast to labor, must afford clients tbe flexibility to
cboose wben, if ever, representatives will be brougbt into tbe medi-
ation process. It sbould be remembered tbat tbe strengtb of tbe
representative role, as well as tbe etbics of maintaining mediator-
representative relations in labor negotiations, is founded on tbe fact
tbat tbe parties are cboosing tbeir representatives. Divorce media-
tion sbould preserve tbis same freedom of cboice concerning attor-
ney representation.
Given tbat client cboice sbould be a fundamental element of
botb labor and divorce mediation, wbat etbical possibilities exist for
a mediator-representative relationsbip? Wbile tbe general rule in
divorce mediation is tbat attorneys are not directly involved in
mediation, tbere still can be exceptions. Suppose ihat a client's
attorney bas advised tbe client not to agree to anytbing wbile in
mediation. Tbis sabotages tbe mediation process. An etbical
response to tbis dilemma could be to bave tbe lawyer come into tbe
mediation process and give permission for tbe client to resume
negotiations (Saposnek, 1983). More subtle attorney resistance to
mediation can also put clients in a difficult position and impede tbe
mediation process. If an attorney is skeptical about mediation or is
simply unfamiliar witb tbe process, tbe mediator sbould try to
establisb lines of communication witb tbat attorney and explain
bow mediation works. Saposnek (1983) dtes several examples of
situations in wbicb attorneys were contacted by tbe mediator, eitber
to participate directly in a session or to discuss in general wbat
mediation is.
Even la^vyers wbo believe tbat divorce mediation offers a
valuable service to clients ntiay bave difficulty sbifting from tbe
representative role of advocate to a new and vaguely defined sup-
32

porting role in mediation. By recognizing that this difficulty may

stem from a very real concern about the ethics of dealing with
clients, divorce mediators can be more effective, sharing their own
concerns about the ethics of dealing with divordng couples. In this
way, a bridge between the professions can more readily be estab-
lished, and divorce mediators and attorneys alike can leam from
each other and contribute to the development of ethical practices in
both fields.
Gondusion
We believe that as divorce mediation becomes a profession, a
code of ethical practice will be developed. The initial steps in
creating such a code are the recognition of problem areas and the
positing of possible solutions. We have contributed to the initial
phase by discussing four ethical issues—neutrality, confidentiality,
competence, and interface with other professionals. However, many
other ethical questions—the setting of fees, responsibilities toward
agendes or organizations, maintenance and enhancement of skills,
polidng the profession, and issues involving family violence—
remain to be explored. It is our hope that the eclectic nature of
mediation will make interprofessional dialogue an espedally effec-
tive way of sharpening our perspective so that ethical guidelines can
be clarified and service can be improved.

References
Markowitz, J. R., and Engram, P. S. "Mediation in Labor Disputes and Divorces:
A Comparative Analysis." In J. A. Lemmon (Ed.), Successful Techniques for
Mediating Family Breakup. Mediation Quarterly, no. 2. San Frandsco: Jossey-
Bass, 1983.
Saposnek, D. T. Mediating Child Custody Disputes: A Systematic Guide for Family
Therapists, Court Counselors, Attorneys, and Judges. San Frandsco: Jossey-Bass,
1983.

Pamela S. Engram, an assistant professor

of psychology at Ithaca College, is a practicing
divorce and family mediator.

James R. Markowitz, an associate professor

of business law and labor relations at
Ithaca College, serves as an arbitrator
and mediator of labor disputes in both
the public and private sectors.