Can a mediator create a balance between self-determination and

procedural and substantive fairness – A discussion on an

ethical framework for decision making

Margaret’s Story• 90 year old lady• Recently had a hip replacement• Has been living alone in her own home• Only son, Bill, lives in the same town and visits twice

a day• Margaret has 4 daughters – two of whom live

interstate • The daughter who has Enduring Power of Attorney

lives 4 hours away

Why is it important to have an ethical framework for decision making in elder mediation?Marcie Cooper says, “In traditional mediation, …….such as divorce mediation, the parties may agree on a resolution without the full knowledge of the facts and without an understanding of the risks associated with decisions that are made. In elder mediation this would have dire consequences – the medical, emotional, safety, financial, residential, social and spiritual needs of the person most vulnerable must be considered”.

(Presentation at the 11th Annual Spring Conference of Bar Association Elder Mediation: An Ethical Approach – Feb 2009)

Ethical Issues in Elder Mediation• An ethical issue is one which leads the mediator to

consider whether the action they are about to take may cause actual or potential harm to the Elder.

• The principles of mediation which may raise ethical questions in Elder Mediation include:

• Autonomy• Power Imbalance• Confidentiality • Impartiality of the Mediator • Conflicts of interest between the participants

What are ethics What are not Ethics• Standards of behaviour

that tell us how we must treat people.

• Based on:• Values• Morals

• Following the Law• Following a feeling• A religion practice• Culturally accepted

norms • Science

How do we decide an ethical issue?• Gut Feeling• Refer to the training of our profession of origin• Codes and Guides

How are ethical issues resolved?1. Utilitarian Approach (John Stuart Mills & Jeremy

Benthan)All equals should be treated equally and unequals unequally but today the ethical position is that all humans should be treated equally but if unequal then fairly based on a criteria.2. Deontology Approach (Immanuel Kant)Ethical the right to choose freely what they do with their lives, right to truth, right not to be injured, the right to get what was agreed to regardless of the consequences.

How are ethical issues resolved?3. Pluralistic Deontology Approach (W H Ross)There are pillars of duties, such as the duty of beneficence – to help other people to increase their happiness. One duty can be trumped by another duty such as the duty of non-maleficence – not to cause harm.4. Fairness or Justice Approach (Aristotle)How fair is this action? But if it shows discriminate or favoritism it is wrong.

How are ethical issues resolved?5. The Virtue ApproachUrges us to strive for the full development of ourselves and society by developing virtues such as honesty, compassion, generosity and fairness.6. The Common Good Approach (Plato, Aristotle, Rawl)Urges us to view ourselves as members of the same community and further the goals that we share in common.

Markkula Center for Applied Ethics http://www.scu.edu/ethics viewed 25 May 2014

Ethical Issues in Elder Mediation• Autonomy and Diminished capacity• Autonomy and Power Imbalance• Confidentiality and Substantive Fairness• Impartiality and Neutrality of the

Mediator• Conflicts of interest

Ethical Decision Making Framework

Recognise an Ethical Issue• Could my decision be damaging to Margaret?• Does this decision involve a choice between two goods

or between two bads?• Is this issue about more than what is legal and what is

most efficient? If so how?

Ethical Decision Making Framework

Get the FactsWhat are the relevant facts of the case? What facts are not known? Can I learn more about the situation? Do I have enough knowledge to make a decision? What individuals and groups have an important stake in the outcome?

Ethical Decision Making Framework

Evaluate Alternative Actions • Does the decision produce the most good and do the

least harm? (The Utilitarian Approach)• Does the decision respect the rights of all who have a

stake? (Deontology Approach)• Will the rights of one person trump the rights of

another?(Pluralist Deontology)

Markkula Center for Applied Ethics http://www.scu.edu/ethics viewed 25 May 2014

Information Provided during Intake

• Margaret self-discharged from hospital• Bill has been informed by the local policeman that there has

been a complaint about her driving• Margaret insists that she is a safe driver who can look after

herself• Bill’s wife no longer visits Margaret because she is rude and

aggressive• Margaret has ‘fired’ the community services• Margaret phones Bill frequently during the day• Margaret has recently connected Foxtel• One daughter visits fortnightly• The attorney notices that Margaret withdraws large sums of

money from her bank account

Ethical Framework• Which option best services the community as a

whole, not just some members of the family? (The Common Good Approach)

• Which option treats all members of the family equally or proportionately? (The Justice Approach)

• Which option leads me to act as the sort of person I want to be? (The Virtue Approach)

The Mediator’s Decision Test• Considering all these approaches, which option

best addresses the interests of Margaret and her family?

• If I told another mediator, mentor or supervisor the option I have chosen, what would they say?

• How can I implement my decision with the greatest care for Margaret and her family?

The Mediator’s Self Care• Reflect on how my decision turned out.• What have I learnt from this experience?

Thank You