Mediation and advocacy are interconnected fields because they both can participate in the negotiation or dispute between the two parties concerned. Regarding that, they may often encounter the case that concern human conflicts thus taking responsibility for the dispute resolution. Advocating as well as mediating are effective systems to improve the social environment before the physical environment could change the situation for the better. However, there is a clear distinction between mediation and advocacy thus having different challenges during the dispute resolution. They may encounter different ethical and moral issues while negotiating or advocating. Moreover, the legal aspect must be also touched upon because there are cases when advocacy and mediation blur the legal boundaries.
Moral and ethical issues arising out of dual relationship
Mediators should be impartial and therefore they must not participate as the legally bound intermediary between the parties in interest. Consequently, a mediator must not take the responsibility of an advocate. The current society is in constant need of skillful mediators that play an important role in considering the cases closely with the human field.
As mediation is a form of the alternative dispute resolution process, it is crucial to identify the major advantages and disadvantages of different methods of resolving disputes between the parties. This question is very important nowadays because the disputants are in the quest for alternative problem solving and they are reluctant to resort to legitimate trials. Instead, they prefer negotiation deprived of some legal restrictions (MacNaughton, 2002 p. 31). Such a kind of negotiation thus faces many ethical problems especially in disputes connected with human and kin relations. In this respect, it is necessary to define the functions of a mediator. Thus, the main function of mediators is to encourage their clients and to seek the settlement of the problem peacefully. However, this encouragement should not support either of the sides but provide a neutral position toward both sides. Mediators do have the right to provide legal advice to their clients. Frequently, the parties demand some legal or technical suggestion from the mediators. Hence, an ethical dilemma arises in front of a mediator who strives to be useful for the clients and to stay away from the personal appraisal of the situation (Weinstei 2001, pp. 71).
Discussing the challenges in the family negotiations there is a problem of the true boundaries of the mediators’ obligations. Hence, the question of the relevance of the mediator advocating the children is still on hold. The ambiguity may appear when a mediator’s role takes a lawyer who is not aware of the ethical issues the alternative dispute resolution may require (Sprangle 2003, pp. 227). In this situation, the legal impact is inevitable and may lead to the infringement of the code of mediators. Therefore, there is a necessity to establish the ethical issues for mediators and the rules regulating the mediation process.
A lawyer acting as a mediator faces many ethical problems by expressing his professionalism and psychological training. He or she is to show his understanding of the case and to act as businesslike and courteous mediators whose major role is not to heal the client’s pain and anger but to solve the concrete problems of the client. As a result, the lawyers may face opposing viewpoints. However, even in this case, their core goal is to single out the strength of the clients’ case to find an optimal decision that would satisfy both parties.
Considering ethical and moral issues of advocates in both mediation and arbitration, advocacy might have a considerable impact on the course of the alternative dispute resolution thus causing the obscurity of the obligations and functions of a mediator. As in mediation, there exist ethical standards in advocacy and arbitration in particular. Still, the interaction between advocacy and mediation exist but the attorneys have limited possibilities in the negotiation process in terms of ethics.
Legitimacy in Mediation and Advocacy
According to the Model Rules of Professional Conduct (2008), the mediation or arbitration process requires the observation of certain legal issues. First of all, during the mediation process, the problem of information confidentiality might emerge. Thus, Rule 1.6 runs:
A lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent, the disclosure is impliedly authorized to carry out the representation or the disclosure by paragraph (Center for Professional Responsibility, 2008, p. 22).
In that regard, the mediator should give the priority to the clients’ opinions but not to his or their own. Mediators must not advocate their position and neither of the parties’ positions in making an assessment. Here, the advocacy is not appropriate.
In some cases, mediation is rigidly misunderstood thus leading to the rude infringement of its fundamental principles. In this respect, the most crucial breach of mediation lies in conducting arbitration in the name of mediation (Weinstein 2001, p. 72). Such a situation mostly emerges when lawyers play the role of mediators so that they might present a legal judgment.
Personal Philosophy and Approach
Advocates and mediators are of value for the human services field as the clients often lack knowledge in terms of their rights existed in the government. Considering this, the mediators and advocates function as supporters for those who could not resolve the problem to their ignorance. Another significant role lies in fostering communication between the clients. Advocacy serves as the platform for those who are incapable to agree because they must be aware of their rights and liberties. As a future expert in human science, my strong belief is that mediation and advocacy are rather crucial in the field of child protective services and foster care agencies as there are cases when the mediator is the only person to rely on. Therefore, child protection mediation focuses on the safety and welfare of a child.
Child Protection Services
The field of child protection requires a deeper examination as nowadays the problem of sexual abuse is a burning issue. In this case, the role of mediators and advocates is enormous because of children. The service provided by the Child Protection Agency is necessary to encourage the abused children to come forward. Mediation is applied in the families in child protective services to solve the conflicts between the family members. Here, the mediator is to protect the children’s interest in the dispute and accentuate the fact that children are not able to protect themselves (Brittain et al., 2001, p. 420). At the same time, the mediator must remain neutral to resolve the child-parent relationships peacefully. The main function of advocates is to present the interest of a child so that he or she possesses all the rights and obligations as a legal advocate. Hence, they are in charge of the investigation thus consulting with social services and agencies. In addition, the advocate is to evaluate the needs and of a child its treatment by parents (Brittain et al., 2004, p. 479).
Foster Care Services
Foster Care Agencies provide 24-hour-a-daycare for children who have been abandoned or neglected by their parents. To allow the foster parent to take children into their home, they should agree. In this case, the mediator is to control the foster parents to provide the child with all the benefits of living in a family (Morrison et al., 1996, p. 407). Considering the care of foster children, the mediators must provide a careful examination of the cases of child abuse taking into consideration the psychological state of the clients. Unlike Child Protection Agency, this organization is more concerned with the future of a child because its welfare is directly dependent on it. To improve the work of both agencies, it is necessary to be more aware of the nature of child abuse.
Conclusion
Mediation and advocacy within the field of human relations is rather an urgent service but it requires professional and educated persons to be in charge of this task. Being an advocate means to protect the group of an individual according to the existed laws. However, being a mediator does not mean to consider the clients’ decision but to facilitate it by offering the right variants of it. As we have our own emotions and opinions, is always avoiding subjective treatment is almost impossible. Therefore, the job of neutral facilitators is rather challenging and responsible because sometimes the advice given by them could be crucial in dispute resolution.
Reference
Brittain, C., Hunt, D. E. (2004). Helping in child protective services: a competency-based handbook. US: Oxford University Press (US).
Center for Professional Responsibility, Center for Professional Responsibility (American Bar Association). (2008). Modern Rules of Professional Conduct the US: American Bar Association.
MacNaughton, A. L. Martin, J. G. (2002). Environmental Dispute Resolution: an anthology of practical solutions. US: American Bar Association.
Morrison A. B., New York University. School of Law (1996). Fundamentals of American law. US: Oxford University Press (US).
Sprangle, M., Isenhart, M. W. (2003). Negotiation: communication for diverse settings. US: SAGE.
Weinstein, R. J. (2001). Mediation in the workplace: a guide for training, practice, administration. US: Greenwood Publishing Group.