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
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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
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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 Approach
Urges 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
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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 Facts
What 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