Wednesday, April 14, 2021 - 22:40

ASST. PROF DORCAS QUEK ANDERSON: WE CAN’T IGNORE ETHICS IN MEDIATION

Why it’s more urgent than ever we have a conversation about mediation ethics.

Dorcas

 

BY ASHUTOSH RAVIKRISHNAN

What makes a successful mediation? To Assistant Professor Dorcas Quek Anderson, the answer lies primarily in high satisfaction rates among parties. This consideration for party satisfaction remains one of mediation’s distinctive traits. “It’s something that mediation providers are extremely concerned about because they want users to have a positive experience,” explains the academic from the SMU Yong Pung How School of Law.

You could say that mediation runs through Prof Anderson’s blood: after all, her articles on its impact on access to justice are widely read and often cited. Her interest in the topic was sparked shortly after completing her stint as a Justices’ Law Clerk. She was then given concurrent appointments as an Assistant Registrar at the Supreme Court and as an Assistant Director at the Singapore Mediation Centre.

“It was during that position that I got to know more about mediation,” she tells SAL, explaining that she was a point person between the two bodies, facilitating the referral of court cases for mediation. It proved to have a lasting impact and inspired her continuing research in the subject.

Tell us about ethics in relation to mediation.

The ethical principles underpinning the mediation process are actually more prominent compared to arbitration and litigation. With a fluid process such as mediation, you need ethics to guide the process properly. The ethical principles in mediation typically relate to voluntariness, fairness, neutrality and informed consent, but these vary across jurisdictions and professional bodies.

But although these ethical principles are imparted to mediators from day one of their training, they could be overlooked. Some may find the general principles difficult to grasp or contextualise. And because mediation is not as public as litigation, it’s easy to overlook mediation ethics altogether.

What’s the danger of overlooking ethical principles?

When a process isn’t readily subject to scrutiny in the public sphere, the need for accountability grows. Sometimes mediators may go on autopilot mode and forget to check if they are breaching certain ethical standards. This can greatly affect the experience for parties, because they may unwittingly feel pressurised into a settlement and then decide that mediation is just not for them. With enough of such cases, the whole mediation movement could fall into disrepute very easily.

Another possible consequence is that cross-border mediation settlements may fail to be enforced because of serious breaches of mediation standards, now that the Singapore Convention on Mediation has been signed. I recently wrote an article that highlights how this new treaty pushes mediation ethics into the spotlight even more.

You’ve discussed tensions within ethical standards in mediation. Tell us about these.

What happens if a party is uninformed of their legal rights or the implications of entering a settlement? Do you step in to intervene? Or do you respect voluntariness? Does a mediator have an obligation to level power imbalances? How do you help parties without coming across as pressurising them? These are some issues that I think the entire mediation movement has to contend with. But first, the community needs to be aware of these tensions before it can even think about navigating them.

Asst. Prof Quek leads a discussion on ethics in mediation and the tensions that mediators may face in its adoption. Registrations for the webinar on 5 May are now open.

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