The risks of unethical mediation practices in South Africa

In the world of mediation, where the primary ethos is about bridging divides and promoting understanding, the presence of unethical mediators can significantly undermine the profession’s integrity and efficacy. As the practice becomes increasingly mainstream in resolving disputes across various domains—be it business, family, or civil matters—the spotlight turns on the quality and ethical standards of the mediators themselves.

 ■ The overconfidence in resolution

One of the critical concerns within the realm of mediation revolves around mediators who possess an inflated belief in their ability to resolve any dispute. The old saying of “When the only tool that you have is a hammer, then everything looks like a nail” rings very true. This overconfidence is not just a harmless personality quirk; it can have real and detrimental effects on the mediation process. When mediators overestimate their capabilities, they may take on cases that are beyond their skill set or inappropriate for mediation. This could potentially lead to unresolved or poorly resolved disputes, which in turn erodes trust in the mediation process.

Mediators who falsely believe they can solve every dispute might inadvertently coerce parties into settlements that do not adequately address their interests or rights. Such outcomes can be particularly damaging in cases that involve complex legal rights or emotional issues, where unmet needs might have long-term repercussions on the parties involved – long after they leave the mediation.

 ■ Speaking ill of fellow mediators

The mediation community, like any other professional group, relies on trust, respect, and collaboration among its fellow mediators to elevate its practice standards. However, when mediators engage in disparaging their colleagues behind their backs, it creates a toxic environment that can lead to divisiveness and mistrust. This behavior not only damages individual reputations but also casts a shadow over the profession as a whole.

Gossip and backbiting are hardly unique to the mediation field, yet in a profession founded on principles such as confidentiality, trust, and neutrality, such conduct is especially incongruous and harmful. It can also discourage new mediators from entering the field or from seeking guidance from more experienced peers, out of fear of being the subject of such gossip.

 ■ The dilemma of unskilled mediators as trainers

Another significant issue is the situation where mediators, who themselves lack adequate experience and knowledge, set out to train others in the art and science of mediation. This poses a grave risk as it perpetuates a cycle of underqualification by mediation training institutions and may lead to a dilution of professional standards. Understandably mediation training institutes operate from a financial model, but when dishing out mediator accreditations as if it were a biscuit factory, new mediators trained by inadequately skilled trainers are likely to be poorly equipped to handle complex mediations effectively. This can result in substandard mediation sessions where critical issues are overlooked or mishandled, leading to injustice and dissatisfaction among the parties involved.

Moreover, parties who experience ineffective mediation are less likely to engage with the process again or recommend it to others, thereby impeding the growth and acceptance of mediation as a valuable dispute resolution tool.

 ■ The way forward: ethics and education

To counter the negative aspects of unethical practice in mediation, it is imperative that the profession as a whole takes proactive steps in regulating the mediation profession. Establishing and enforcing rigorous ethical standards is crucial. National mediation organisations must strengthen their ethical guidelines and ensure they are both comprehensive and enforced. Regular ethical training should be mandatory, focusing not only on understanding the guidelines but also on implementing them in practice.

Education and continuous professional development play a critical role in maintaining the quality of mediation. It is essential that potential mediators receive high-quality, accredited training by experienced mediators before entering the field. Ongoing education opportunities should also be available to help mediators keep abreast of new developments and refine their skills.

Moreover, fostering a supportive and open community where mediators can discuss challenges and share knowledge without fear of judgment or reprisal can help in maintaining high standards of practice. Encouraging transparency and open lines of communication among professionals can help root out unethical behavior and promote a more ethical, effective approach to mediation.

 ■ Some closing remarks

While mediation can be a powerful tool for resolving disputes, the presence of unethical mediators can diminish its effectiveness and damage its reputation. It is crucial for those within the profession to actively work towards sidelining overconfidence without basis, gossip, and inadequate training practices. Through a concerted effort to enhance ethical standards and professional training, the mediation community can uphold the integrity of the practice and ensure it remains a respected and valuable means of dispute resolution.

Written by Eugene Opperman (B.Proc. LLB.) (LSSA L.E.A.D., ADR Network, FAMAC, NABFAM), a legal practitioner and accredited mediator.