THE ADVOCATE 849
VOL. 79 PART 6 NOVEMBER 2021
ETHICAL MEDIATION
By M. Ali Lakhani, Q.C.
One of Socrates’s principal criticisms of sophistry was that the
sophists deployed rhetoric, the art of persuasion, without any
necessary regard to an ethical telos. Their skill was functionally
utilitarian: it aimed principally to win arguments, not
necessarily to achieve moral outcomes. For philosophically minded
lawyers, the dilemma of harmonizing rhetoric and justice is not uncommon.
The lawyer is meant to dutifully advocate the client’s position, however
distasteful or morally dubious, leaving the business of judging to
others.
In the context of mediation, where mediators act merely as intermediaries
between disputants to facilitate their arriving at a settlement, the issue
of ethics takes on a different dimension: while, unlike a barrister, the mediator
is not an advocate, and indeed must observe the canon of mediation
neutrality, the mediator’s dilemma is to reconcile neutrality with ethical
mediation. It is trite that many conflicts are rooted in allegations of ethical
transgression—a broken promise, an inequitable bargain, a breach of trust,
a tort, a broken marriage—and that ethics are vital to both dispute prevention
and resolution. Yet, mediators are understandably uncomfortable with
being ethical advocates—and indeed it is not their role to be the “moral
police”; however, there is a vital and necessary role for mediators to assume
in importing ethics into mediations.
In mediation, ethics is “the river that runs through everything”. Ethical
enculturation is the key to dispute prevention. Moral suasion is vital to
bringing reluctant parties to mediation. An “ethical buy-in” enhances the
prospects of a successful outcome, and once a mediated settlement agreement
(“MSA”) is obtained, it is only genuine ethical commitment that will
prompt parties to honour its terms.
The author of this article not only is a practising lawyer, but also has conducted
mediations, acted as counsel in mediations, been a party to mediations
and has helped shape the mediation procedures for the Ismaili
Conciliation and Arbitration Board (“CAB”), the body established by His
Highness the Aga Khan under the 1986 Ismaili Constitution to, inter alia,
conduct ethical mediations. Ismailis have a longstanding tradition, extend-