It's titled "Mediating Ethically: The Limits of Codes of Conduct and the Potential of a Reflective Practice Model" by Julie Macfarlane (Osgoode Hall Law Journal 49, 2002), and lives up to its title.
The article criticizes reliance on codes of conduct to guide professional practices such as mediation where ethical considerations are paramount. Codes of conduct are too abstract, and it's not possible to actually separate them outside of the "context and circumstance" (p. 60) of professional action:
Codes reduce ethical choices to a set of generic principles, fastening on relatively uncontentious virtues for the mediation process, which appear in a virtually identical form across numerous codes of conduct. Ethical issues are identified as discrete topics such as mediator impartiality, conflicts of interest, and self-determination; ethical dilemmas are those that threaten the integrity of these principles. Codes of conduct for mediators also assume that it is possible to describe and regulate the process of dialogue and the content of dialogue quite separately. Principles for process management dominate codes of conduct for mediators and often precede the commencement of dialogue (p. 60)Even apparently "functional" choices can have ethical consequences. The article provides good examples of ethical choices on the move-by-move level:
Even the most mundane and mechanical decisions have a habit of turning into issues of principle in the volatile climate of conflict. For example, the plaintiff’s refusal to meet during the daytime is characterized by the defendants as “typical of their uncooperative stance.” Thus the question of scheduling, and how the mediator deals with it, is transformed into an ethical dilemma. The mediator must decide whose preference shall prevail and what values are implicated. Deciding whether or not and how to quiet Party A thirty minutes into his or her monologue raises fundamental questions about the role of parties and mediators in a facilitated dialogue. (p. 57-58)Practitioner choice-making is constant:
The reality of mediation is that ethical judgment making occurs constantly, intuitively, and often unconsciously. (p. 59)The article argues against thinking only in terms of outcomes, and promotes the need for understanding such micro-choices on the move-by-move level:
Mediation is as much a process, replete with ongoing negotiated understandings, as it is a result. The “snapshots” represented by beginnings and endings which dominate standard-setting in codes of conduct for mediators are but a fragment of this process. Instead, the expanded definition of what amounts to ethical choices suggested in this article shifts the focus from an evaluation of end result, or proper procedure in mediation set-up, to the choices made in the course of micro-managing the dialogue between the parties. (p. 67)The article provides two lengthy case studies from the author's own experience as a mediator, analyzing them from a reflective practice viewpoint. Macfarlane stresses the importance of taking such an approach for 'young' fields like mediation:
The reflective-practice model seems especially appropriate to a field such as mediation that is at an early stage of professional and self-conscious development, and to a form of intervention that is so diversified, unregulated, and context-dependent. As an examination of “practitioner cogitation,” it focuses on teasing out the values and assumptions behind the choices often made intuitively by mediation practitioners when they face ethical dilemmas in the course of their practice and the values they imply. These values can then be debated, critiqued, and diversified across different frames of action. (p. 73)and lays out what this will require from practitioners:
putting the principles of reflective practice into practice requires the conscious nurturing of a collaborative professional environment in which personal experiences and choices are shared in a continuous, self-critical, non-defensive, and open dialogue. It needs practitioners—new and old, experienced and less experienced—to talk and write analytically and self-critically about their approaches to ethical dilemmas. (pp. 85-86)Following such an approach for practitioner education and development could result, among other things, in making practitioner choice-making, and its ethical and sensemaking characteristics, "first class objects" in both the research and professional practice communities.