Mediator Code of Ethics and Social Work Mediation as an out-of-court activity and probation as an alternative to a stricter punishment (preventive character) reflect the current requirements of our society. Both mediation and probation work with methods of social work, law, psychology, sociology, and many other humanities. Such a multidisciplinary focus offers great opportunities for achieving common goals. And I believe that the common goal is the client, who finds help from us in his seemingly unsolvable situation.
The Association of Mediators of Slovakia (AMS) was established on the basis of experts’ experience with alternative dispute resolution as the civic association PDCS, ARK (I cannot fail to mention Assoc. Prof. Labáth, PhDr. Ondrušek, and others). AMS seeks solutions that lead to a win-win state. The association brings together people who work as mediators or as sympathizers of mediation, who like the idea of alternative out-of-court dispute resolution. The association creates a professional forum for questions of law and legislation, education, psychology, social issues, and ethics through the ethics committee. We believe that alternative dispute resolution by mediation, in cooperation with social workers, psychologists, lawyers, and other experts, will be accessible to the citizen as a path to justice.
Ethics as a philosophical discipline examines morality, moral action, and norms. Ethics is classified as a discipline of practical philosophy. Practical philosophy deals with creation and human action. The concept of ethics comes from the Greek word ethos - habit, custom, way of thinking, but also the attitude of individuals and groups. Ethics also represents a tool for examining what is important for a person and also for examining morality.
Ethics distinguishes a code of ethics. We can speak of a code of ethics as a summary of rules of conduct in society or in an organization. A mediator also has such a code of ethics. The mediator’s Code of Ethics is the cornerstone of the rules of a mediator’s professionalism. When we talk about ethics, morality is closely linked to it. We characterize morality as a social phenomenon. The mediator’s morality reflects interpersonal relations and human activity, where there is good and evil. Ethics is the theory of morality and ethical conduct. If a mediator does not follow moral principles in his profession, we can say that he is first and foremost indifferent to himself and to his surroundings. So indifference to oneself leads to indifference toward others. And that no longer has a place in society, and certainly not in addressing interpersonal relations. The mediator is expected to embody values oriented toward good. “Good is everything that contributes to humanity as a whole.” (Vajda, 1995). The measure of morality in society is ethical conduct. Ethics examines people’s relations to other people, to society, and to themselves. By examining these relations, it provides practical guidance for people’s behavior and action in private, working, and public life. “Although ethics and morality are often confused in everyday speech and used as synonyms, they need to be distinguished.” (Mátel, 2010, p. 10).
Significant attributes such as independence, voluntariness, and freedom are basic conditions of morality. Ethics cannot decide for the mediator how he should behave. It is a matter of his personal free choice, since ethics, ethical behavior, and action are above all a method of thinking. It offers possibilities within its spectrum of action and thought, but it decides nowhere on our behalf. The decision is always on our side. If we have spoken of attributes such as independence, voluntariness, and freedom, then in the system of ethics there is also room for honor, conscience, and dignity. The quality fulfillment of moral obligations and requirements represents honesty. The category of dignity, the mediator’s personality, the relation to oneself and the relation to society. The mentioned conscience appears as a self-evaluating feeling, an inner voice, self-assessment - self-reflection. The mediator’s Code of Ethics sets out the requirements placed on the mediator’s professional and moral credit. The mediator, as the performer of mediation, appears as one of the most effective alternative means of resolving conflicts and disputes.
The mediator’s Code of Ethics
Article 1 of the Code of Ethics regulates the mediator’s relationship to the disputing parties. Before the independent process begins, the mediator instructs the parties about voluntariness and confidentiality. In doing so, he gives the parties the opportunity to interrupt mediation at any time and at any stage, or even terminate it, which means a free decision by one or the other party. Freedom of decision and freedom of will of the participating parties leads and moves the mediator toward a successful resolution. The mediator does not decide; he does not render a verdict. His role is to manage the entire process, whose final stage is the conclusion of an agreement. The entire process is based on trust. Without the mediator’s acceptance of trust, it is not possible to respond objectively to the disputing parties.
For mediation to be successful and transparent, the mediator follows the principles set out by the Code of Ethics in Article 2. Article 2, among other things, deals with the mediator’s impartiality; it leads him toward professionalism and, for both parties to the dispute, is a factor in an objective outcome. It leads both parties to the dispute to responsibility for the entire dispute. In social work, the social worker acts responsibly toward his clients and likewise leads them toward responsibility. The demands on the mediator’s professionalism in his preparation and further practice are constantly increasing. “The demands placed on the personality of the social worker in the counseling process are high, as are the client’s expectations. We should therefore not lose sight of the fact that even the counselor, no matter how purposeful, self-aware, and self-improving he may be, is ‘only’ human and as such has a right to imperfection.” (Schavel, Oláh, 2010, p. 82). He guides the parties to address their problem and thus seek starting points for resolving the dispute through responsible action by both parties. The mediator leads the parties to a win. From responsible action to a proposal for a mediation agreement is only a small step. When drafting a mediation agreement, the mediator is impartial and only guides the disputing parties so that the mediation agreement is a win-win for both. In mediation, the mediator considers each of his interventions in the entire process so that neither party to the dispute feels disadvantaged. Equal conditions for both parties make the mediator impartial and objective.
Since mediation is confidential, the mediator creates an atmosphere of trust for both parties. Trust, respect, and professionalism create a positive atmosphere, and that creates space for an agreement. The same is also mandated by the Code of Ethics of the social worker in Art. 2, point 2, letter h, where it states: “The social worker respects the client’s privacy and preserves the confidentiality of information obtained in the course of his work.” (In Mátel, 2010, p. 69) If the disputing parties are emotionally tense and the tension of emotions escalates, then the disputing parties are unable to communicate with each other and the mediator sensitively negotiates with each party to the dispute separately. Subsequently, he transfers the acquired knowledge of one party to the other party. Within professional training, the mediator is trained in communication and socio-psychological skills for such situations as well, so that he can respond adequately. As I have already stated above, mediation is confidential, so everything takes place with the consent of the affected party to the dispute. Another very important attribute for the mediator is confidentiality. The mediator’s confidentiality is also enshrined in Act No. 420/2004 Coll. on Mediation, where Section 5 states: “The mediator, persons participating in mediation, and other natural persons invited to mediation by the mediator or by a person participating in mediation are obliged to maintain confidentiality regarding all facts they learned in connection with mediation” (Act No. 420/2004 Coll.). There are also cases in which the mediator is released from confidentiality, which is regulated by the cited Act in Section 6. Professionalism, collegiality toward other fellow mediators, is defined in Article 3 of the mediator’s Code of Ethics. For a professional, it is self-evident that it would be unethical to intervene in a mediated dispute or to express critical opinions about mediation agreements. Every mediator strives to ensure that the mediation agreement is a win for both parties to the dispute. Is questioning an agreement professional? It would be grossly unprofessional if a mediator were to criticize or question another colleague’s mediation agreement. Every mediator knows well that an agreement is an expression of the will of both parties; otherwise, we could not speak of an agreement. Many times, the criticizing mediator does not know the background of the agreement, what led the disputing parties to the agreement. The path to an agreement between two disputing parties is often demanding, and therefore questioning the agreement by a critical mediator is an attack on the essence of mediation and, of course, a violation of the Code of Ethics.
As in every profession there are obligations, so it is also in the mediator’s code, where in Article 4 the mediator is expected to have a professional approach and provide high-quality performance of the profession. Education in the mediator profession is a lifelong process. The rapid trend of change and thus development requires a constant need to accept and expand professional competence, to grow in one’s expertise, and to improve continuously. In growth and advancement, the mediator is expected to engage in ongoing education in psychological-social skills, communication skills, and legal deepening.
Not everyone can do everything and, of course, we do not have to be experts in everything. It is, after all, unthinkable. The same applies to the mediator. Therefore, it is appropriate for every mediator to be able, upon accepting a proposal for mediation, to assess the complexity of the dispute versus his abilities and knowledge. It is not at all unprofessional if I assess a given case from my perspective as unacceptable. The strength of professionalism is demonstrated when the mediator can name the given case and can evaluate before himself that he would not be able to help the disputing party. And thus he can pass the case on to a colleague. The mediator’s obligation from the Code of Ethics is the promotion of mediation as a process of out-of-court dispute resolution. In his professionalism, the mediator is able to use his knowledge in the field of socio-psychological counseling, communication, and legal skills.
Conclusion
The Code of Ethics represents a summary of moral norms, values, and principles that every mediator should observe. The Code of Ethics sets standards and guides interaction in behavior toward the disputing parties and toward colleagues. By accepting the Code of Ethics, the mediator becomes a professional who honors mediation, social norms, values, and principles. As a subject of society, the mediator has found his place in professional practice. Society needs the mediator, and the mediator has his place in society. People will always seek professionals and expect help from them in their problems. The need for mediation in Slovakia has brought a new dimension to dispute resolution, or an alternative to out-of-court dispute resolution. Although the diversity of disputes is varied, there is no universality in dispute resolution. Such differentiation gives the mediator an opportunity for development. I believe that every mediator has at heart that mediation in Slovakia, i.e. out-of-court dispute resolution, develops, secures its place in society, and progresses.
It is self-evident that the activity of social work and social workers in the entire sphere of activity means that “a discipline moving in such a broad spectrum of activities from micro to macro situations, using appropriate methods (micro, mezo and macro methods), must necessarily incorporate knowledge from other sciences into its theoretical equipment.” (Tomka, 2005, p. 161). On the other hand, I am of the opinion that it is precisely the radius of social work’s scope in mediation, probation, and restorative justice that refines the application of social work and the practical dimension of social work. Therefore, I believe that mediation has its place in Slovakia, even though Slovaks like to sue.
Author: Mgr. Ernest Kováč Association of Mediators of Slovakia
List of bibliographic references
[1] MÁTEL, A. et al. 2010. Ethics of Social Work. Bratislava: VŠZaSP sv. Alžbety, 2010, ISBN: 978-80-89271-85-6. [2] SCHAVEL, M. – OLÁH, M. 2010. Social Counseling in Social Work. Bratislava: VŠZaSP sv. Alžbety, 2010. ISBN: 978-80-89392-19-6. [3] TOMKA, M. 2005. Systems Thinking in the Context of Helping Professions. In: Culture - space of interdisciplinary thinking. Proceedings of the international conference. Nitra: UKF in Nitra, 2005, p. 161. [4] VAJDA, J. 1995. Ethics. Nitra: Enigma, 1995. ISBN: 80-85471-23-X. [5] Act No. 420/2004 Coll. on Mediation and on Amendments to Certain Acts [6] Act No. 550/2003 Coll. on Probation and Mediation Officers and on Amendments and Supplements to Later Regulations
The lecture was delivered at the international scientific conference Applied Ethics in Social Work and Other Helping Professions, which took place on 20 - 21 October 2010 in Piešťany and was published in the proceedings from this conference: MÁTEL, A. - SCHAVEL, M. - MÜHLPACHR, P. - ROMAN, T. 2010. Applied ethics in social work and other helping professions. Proceedings of the international scientific conference. Bratislava: VŠZaSP sv. Alžbety. 413 p. ISBN 978-80-89271-89-4.