Introduction

Mediators are expected to further the interests of mediation parties and avoid harming them. This expectation clearly follows from mediators’ position of trust regarding the parties. But mediators have interests of their own that are not necessarily consistent with the parties’. They are not unique in that respect, as all professionals might find themselves in a conflict of interest vis-à-vis their clients. For these reasons, issues of conflicts of interest are discussed in the literature on professional ethics and addressed in various professional codes of conduct. Mediators and mediation parties need to be aware of circumstances that give rise to conflicts of interest and of the actions that mediators should take in response. This chapter explores the meaning of a conflict of interest in the context of mediation and its implications for mediators’ conduct.

The inevitability of mediator conflicts of interest

A realistic approach to professional ethics accepts that conflicts of interest between professionals and their clients in general and between mediators and mediation parties in particular are unavoidable and cannot be completely eliminated. Consider the following examples in the context of mediation practice:

Mediator fees

Mediators who charge fees for their services have an interest in increasing their fees while reducing the amount of work done for these fees. This potential conflict of interest is inherent in any professional relationship: therapists might have to resist the temptation to prolong treatment when remunerated on an hourly basis, and lawyers might be torn between a desire to take on a case for a high fee and their professional evaluation that the case has no legal merits. Codes of conduct for mediators recognize these difficulties. The Model Standards, for example, provide that “a mediator shall not undermine party self-determination … for reasons such as … increased fees”; and the North Carolina Standards state that “[a] mediator shall not prolong a mediation for the purpose of charging a higher fee.”

Agreement as a goal

Problem-solving mediation often considers a mediated agreement to be the purpose of mediation. On such an approach, the attainment of an agreement, possibly any agreement, irrespective of the parties’ needs, is in the mediator's interest. Furthermore, mediators are motivated to push for an agreement because they want to attract more work, build up their reputation, and satisfy case-referring institutions that equate mediation success with mediated agreements.