I did not begin my legal career as a mediator or an academic. I started out as a litigator—filing complaints, writing motions, and pushing cases toward trial. However, early in my career, I had an interaction with opposing counsel that made me question if there wasn't a better alternative for resolving disputes. I was working on a personal injury case. My client, a seventeen-year-old girl, had suffered second-degree burns all over her body after the timer on a tanning bed malfunctioned. All parties agreed on the facts: the tanning bed had a timer; the timer had been set for fifteen minutes; the timer failed to go off; my client fell asleep and was exposed to the bed's ultraviolet lights for over an hour.

When the tanning bed manufacturer responded to our complaint and claimed they could not understand why they were being sued, I met with lawyers from the company to see if I could satisfy their concerns. My first meeting was with a lawyer who, like me, had been practicing for only a few years and had roughly my level of experience. The two of us had a reasonable conversation and were able to agree on some procedural points that would eliminate the need for a court hearing. On the second day of meetings, this younger attorney was accompanied by one of his senior, more grizzled colleagues. This more seasoned attorney drove the negotiation like a double-wide truck: he sideswiped the agreements his colleague and I had already reached and blocked any avenue for further negotiations. The result was an unnecessary court hearing, a waste of time and money for everyone involved.

The other young attorney and I were new to the law business. We adopted commonsense positions, took each other at our word, and made serious attempts to understand one another. We wanted to move things forward. We had impulses toward constructive collaboration. The more experienced lawyer, schooled in the art of escalation, took outrageous positions and seemed bent on sustaining discord.

My experience with this more senior lawyer made me wonder what becoming an experienced attorney would mean and what I would be like once my rookie reflexes were gone and I had begun to think and act like a pro. This episode taught me that garnering more experience as a litigator might blunt my native problem-solving skills—what I felt were my most valuable intuitions. This is not to say that all those in the legal profession practice scorched-earth litigation tactics incompatible with principled negotiation. Many attorneys practice in collaborative, problem-solving ways and mentor their younger colleagues in the usefulness of those methods. But it is true that some attorneys wander down side trails in order to push an aggressive agenda at all costs. The ethical imperative to be a counselor and help solve the client's problems can get lost.

The mediation field is similarly at risk. Intervening in other people's conflicts is an audacious act, its hubris justified only if the intervention is likely to make things better—or at least not make them worse. As a profession, the field seems to understand this. However, some mediators may find themselves practicing by rote, following well-worn wagon treads without reflection. My suspicion that some mediators operate on autopilot was confirmed when, a few years ago, I organized a dinner for local mediators to talk about ethics. I promised free food and wine. The only cost of admission was a description of the toughest ethical quandary each mediator had faced in practice. One veteran mediator accepted the invitation, but lamented that in his over-twenty-year career as a neutral, he had never seen anything resembling an ethical dilemma!

You'd think a field that self-consciously sees itself as “doing good” would have a well-developed literature on ethics, but ours does not. We are awash in texts that explain how to mediate effectively, profitably, spiritually, sensitively, and cross-culturally. But guidance in mediating ethically is in short supply.

I wrote this book to help conflict resolution professionals traverse the disorienting landscape of ethical decision making with greater clarity and deliberateness. In its case studies and commentaries, the book describes the often murky ethical terrain that mediators are likely to encounter and offers guidance on how to navigate it. This book is a trail guide; it will not always tell you where to go, but it will assess the allures and dangers of various off-road itineraries. After reading this book, it is unlikely you will suffer vertigo when facing a particularly precarious ridge or fork in the road ahead. You will become more adept at spotting potential roadblocks and reasoning through your options. Even on those occasions when all options seem bad, this book will help you become more conscious and confident of your own mediation orientation and forge a path that honors the important values at stake.

In the following chapters, you will hear from both me and other professionals in the field. In Chapter One, I discuss the underlying values of mediation, its regulatory codes, and emerging models of practice. The subsequent chapters introduce various ethical dilemmas, exemplified by both easy and hard cases. Each hard case is followed by commentaries from leading mediation scholars who explain what they would do in the case and why. Each commentator approaches conflict resolution with a different philosophy and articulates his or her approach to the case with deliberate attention to how an understanding of ethical obligations informs his or her thinking about the case. In the discussions that follow, you will learn what each commentator values most in the mediation process and how his or her values determine certain outcomes and discourage others.

The commentators in this book demonstrate the vast diversity that characterizes the field today. Evaluative, facilitative, narrative, and transformative mediators are all represented. In reading their work, you will be struck by the heterogeneity of their philosophical commitments. But note how all authors identify the values they hold most dear and how the priorities they set determine the action plans they adopt.