Mediation ethics in Australia : a case for rethinking the foundational paradigm

In contemporary Western society, including Australia, professional mediation practice has developed with a specifically defined foundational approach - a problem-solving, facilitative method, in which the mediator's intervention is centred on providing the parties with a series of formal steps to assist their communication and to steer them towards a self-determined and mutually agreeable resolution of the issues in dispute. Facilitative mediation developed, in part, as a response to the adversarial system of law and justice. In that system the parties are said to lose control of their dispute, and a decision is imposed on them which invariably puts one party in a losing position. Facilitative mediation has offered an alternative to this inevitable outcome by offering the parties a democratic, cost-effective, party-centred, empowering, interests-based and principled option for resolving their dispute.

Teaching dispute resolution ethics in the law curriculum

Dispute resolution processes such as mediation are now central to contemporary legal practice. For this reason it is critical that the law curriculum includes instruction on mediation ethics, so that law graduates enter the profession equipped to deal with ethical dilemmas arising in this context. However, our recent content analysis of the unit outlines for professional responsibility subjects in Australian law schools indicates that this important area of legal ethics is often excluded from the curriculum. In most Australian law schools, dispute resolution subjects (where mediation ethics might also be considered) continue to be offered as stand-alone electives in the law degree. This means that many law students are graduating without the ethical knowledge and judgment-making skills needed in dispute resolution environments. This is contrary to the intentions of the Threshold Learning Outcomes for Law. This paper argues that the current paucity of mediation ethics instruction in the Australian law curriculum is problematic, given mediation’s relevance to contemporary legal practice. The paper discusses the importance of including mediation ethics in the law curriculum, and the importance of dispute resolution more broadly as a mandatory component of the law degree in Australia. It offers an outline of a possible mediation ethics module that could be included in professional responsibility subjects.

A gravitação da ética do cuidado na mediação : intervenção social e escolar nas escolas

Na resolução de conflitos, no incumprimento de normas e nas situações de indisciplina escolar, exigem-se mediadores e programas de mediação. Na implementação destes programas é essencial formar mediadores para intervirem em contexto socioeducativo com alunos, professores e família, sendo exigido a esses profissionais uma ética profissional mediadora. A necessidade de educar os alunos para integrarem as equipes de mediação implica a promoção de valores de convivência e uma ética do cuidado com os outros. A ética do cuidado e do encontro permite mais possibilidades de convívio e novas formas de existência humana. Procuramos interpretar os pontos de vista de alguns autores sobre a mediação (modelos e programas), destacando a educação para a tolerância, solidariedade, responsabilidade e cidadania, que são exigências da escola no âmbito da educação para os valores. A mediação contribui para resolver conflitos, melhorar a comunicação, as relações e a convivência.

Una mediación ética, psicológica y ecologizante

Recibido 10 de noviembre de 2010 • Aceptado 09 de marzo de 2011 • Corregido 04 de mayo de 2011    En este artículo hago hincapié en la importancia de la mediación pedagógica en el proceso educativo y paso a señalar cómo la mediación se enriquece si se toman en cuenta consideraciones de tipo ético como la legitimidad del otro; de tipo psicológico, rescatando del valor de la empatía, y de tipo ecologizante, resaltando la importancia de la contextualización como medio pedagógico.

Towards Humane Technologies: Biotechnologies, New Media and Ethics

What are the ethical and political implications when the very foundations of life —things of awe and spiritual significance — are translated into products accessible to few people? This book critically analyses this historic recontextualisation. Through mediation — when meaning moves ‘from one text to another, from one discourse to another’ — biotechnology is transformed into analysable data and into public discourses. The unique book links biotechnology with media and citizenship. As with any ‘commodity’, biological products have been commodified. Because enormous speculative investment rests on this, risk will be understated and benefit will be overstated. Benefits will be unfairly distributed. Already, the bioprospecting of Southern megadiverse nations, legally sanctioned by U.S. property rights conventions, has led to wealth and health benefits in the North. Crucial to this development are biotechnological discourses that shift meanings from a “language of life” into technocratic discourses, infused with neo-liberal economic assumptions that promise progress and benefits for all. Crucial in this is the mass media’s representation of biotechnology for an audience with poor scientific literacy. Yet, even apparently benign biotechnology spawned by the Human Genome Project such as prenatal screening has eugenic possibilities, and genetic codes for illness are eagerly sought by insurance companies seeking to exclude certain people. These issues raise important questions about a citizenship that is founded on moral responsibility for the wellbeing of society now and into the future. After all, biotechnology is very much concerned with the essence of life itself. This book provides a space for alternative and dissident voices beyond the hype that surrounds biotechnology.

Artful shaping : the ethics of fictionalising oral history

The paper documents the development of an ethical framework for my current PhD project. I am a practice-led researcher with a background in creative writing. My project invovles conducting a number of oral history interviews with individuals living in Brisbane, Queensland, Australia. I use the interviews to inform a novel set in Brisbane. In doing so, I hope to provide a lens into a cultural and historical space by creating a rich, textured and vivid narrative while still retaining some of the essential aspects of the oral history. While developing a methodology for fictionalising these oral histories, I have encountered a derserve range of ethical issues. In particular I have had to confront my role as a writer and researcher working with other people’s stories. In order to grapple with the complex ethics of such an engagment, I examine the devices and stratedgies employed by other creative practioners working in similar fields. I focus chielfy on Miguel Barnet’s Biography of a Runaway Slave (published in English in 1968) Dave Eggers’What is the what: The autobiography of Valentino Achek Deng, a novel (2005) in order to understand the complex processes of mediation invloved in the artful shaping of oral histories. The paper explores how I have confronted and resolved ethical considerations in my theoretical and creative work.

Despairing Justice and the Ethics of Legal Interpretation

This study discusses legal interpretation. The question is how legal texts, for instance laws, statutes and regulations, can and do have meaning. Language makes interpretation difficult as it holds no definite meanings. When the theoretical connection between semantics and legal meaning is loosened and we realise that language cannot be a means of justifying legal decisions, the responsibility inherent in legal interpretation can be seen in full. We are thus compelled to search for ways to analyse this responsibility. The main argument of the book is that the responsibility of legal interpretation contains a responsibility towards the text that is interpreted (and through the mediation of the text also towards the legal system), but not only this. It is not simply a responsibility to read and read well, but it transcends on a broader scale. It includes responsibility for the effects of the interpretation in a particular situation and with regard to the people whose case is decided. Ultimately, it is a responsibility to do justice. These two aspects of responsibility are conceptualised here as the two dimensions of the ethics of legal interpretation: the textual and the situational. The basic conception of language presented here is provided by Ludwig Wittgenstein s later philosophy, but the argument is not committed to only one philosophical tradition. Wittgenstein can be counterpointed in interesting ways by Jacques Derrida s ideas on language and meaning. Derrida s work also functions as a contrast to hermeneutic theories. It is argued that the seed to an answer to the question of meaning lies in the inter-personal and situated activity of interpretation and communication, an idea that can be discerned in different ways in the works of Wittgenstein, Derrida and Hans-Georg Gadamer. This way the question of meaning naturally leads us to think about ethics, which is approached here through the philosophy of Emmanuel Levinas. His thinking, focusing on topics such as otherness, friendship and hospitality, provides possibilities for answering some of the questions posed in this book. However, at the same time we move inside a normativity where ethics and politics come together in many ways. The responsibility of legal interpretation is connected to the political and this has to be acknowledged lest we forget that law always implies force. But it is argued here that the political can be explored in positive terms as it does not have to mean only power or violence.