University of California Irvine, School of Law; Georgetown University Law Center
MEDIATION ETHICS: CASES & COMMENTARIES, 305-338, Ellen Waldman, ed., San Francisco, CA: Jossey-Bass, 2011
UC Irvine School of Law Research Paper No. 2012-28
Georgetown Public Law Research Paper No. 12-061
This commentary on mediating multiculturally in a chapter of Mediation Ethics (edited by Ellen Waldman) suggests there are times when mediators should not mediate, because of their own ethical commitments. Commenting on a hypothetical divorce scenario (of Ziba, a 17 year old from her 44 year old husband, with two children aged 3 and 2, where the parties claim to want Shari’a principles to apply), the author (Carrie Menkel-Meadow) suggests that she would not mediate a case which might violate formal laws (American marriage and divorce laws) or infringe on rights that one of the parties might not be fully aware of. A variety of sources of ethics, including formal law, legal and mediation ethical rules, and personal ethical commitments may structure how mediators choose whether to take a case, educate the parties about their rights, make a referral, or how to mediate if complex (and different for each of the parties and/or the mediator) legal, moral, religious and cultural values are at stake. The chapter contains contrasting views expressed by two different mediators, with summary and commentary by the book’s editor.