Ethics as the Invisible Architecture of Mediation: Reviewing Two Recent AAA Mediation Magazine Pieces

Two recent articles published by the AAA’s Mediation Magazine deserve close attention from anyone who acts as a mediator, and indeed from anyone who appears in mediation as counsel. Francine Friedman Griesing’s “How to Avoid Common Ethical Mistakes as a Neutral Mediator or Advocate in Mediation” and Norman Feit’s “Avoiding Misleading Mediator Communications” both take ABA Formal Opinion 518 as their starting point and use it to explore the ethical boundaries of mediation practice. Read together, they provide a timely reminder that ethics are not an optional extra in mediation. They are fundamental to the legitimacy of the process and are the guiding light for mediators the World over.

That point matters because mediation is built differently from adjudication. It is more flexible, more conversational, and often more dependent on the skill and judgment of the neutral than on visible procedural structure. In court or arbitration, much of the protection for the parties is supplied by the formal process itself. In mediation, a great deal rests on the mediator’s capacity to remain clear about their role, careful in language, disciplined in conduct, and transparent about the limits of the function being performed. The success of mediation depends not only on trust in the process, but on trust in the person conducting it.

Feit’s article focuses closely on misleading mediator communications. Its concern is not abstract ethics, but the practical risk that what a mediator says, or how it is said, may lead parties to misunderstand the mediator’s role. That danger can arise in many ways. A mediator may appear to identify too strongly with one party, may offer reassurance that sounds like advice, or may relay a message from one side to the other in a way that subtly alters its meaning. Feit rightly notes that the risk is especially acute where one or more parties are unrepresented or inexperienced in mediation and may assume that the mediator is there to protect them.

One of the strengths of Feit’s piece is that it moves beyond broad principle and looks at the everyday situations in which ethical slippage can occur. Most mediators would never explicitly tell a party that they are acting for them. The real difficulty lies in the quieter forms of overreach: language that implies endorsement, reality-testing that turns into advice, or a style of engagement that causes a party to confuse neutral facilitation with substantive guidance. The article’s practical suggestions are therefore particularly useful: explain the mediator’s role clearly at the outset, exercise added care with unrepresented parties, confirm precisely what messages are to be conveyed, and be alert to how statements may be received rather than merely how they were intended.

Feit’s discussion of mediator’s proposals is also helpful. He resists the idea that the use of such proposals is necessarily unethical unless they replicate some mathematically neutral midpoint between the parties’ positions. His approach is more nuanced. A mediator’s proposal may be legitimate if it is framed not as advice, not as a judgment on legal merits, and not as a statement of what is in a party’s best interests, but as a possible settlement figure that each party remains free to accept or reject. Whether all readers will agree with every aspect of that analysis, it highlights an important point: ethics in mediation are often less about banning techniques outright and more about the discipline, framing and conditions within which those techniques are used.

Griesing’s article complements this by widening the lens. She carefully distinguishes between the ethical duties of advocates and those of the neutral. Counsel owe duties of competence, diligence and communication to their clients. The mediator does not. The mediator’s obligations arise from the distinct role of third-party neutral. That distinction is important because one of the recurring practical pressures in mediation is the temptation to blur responsibility. Counsel may hope that the mediator will persuade a reluctant client to accept a proposal; equally, a mediator may feel drawn into doing exactly that. Griesing is right to warn against this. A mediator should not tell a party that a particular outcome is in that party’s best interests. That is not the mediator’s role.

Her article is also valuable in stressing that these ethical questions are not limited to lawyer-mediators. Professional rules may differ across jurisdictions and across mediation settings, but the underlying values are familiar and widely shared: party self-determination, impartiality, competence, confidentiality, and the integrity of the process. These are not technical add-ons. They are part of what makes mediation credible. If parties begin to feel that the neutral is pushing outcomes, shaping advice, or quietly aligning with one side, confidence in the process can erode very quickly.

A further useful feature of Griesing’s piece is its treatment of what happens once settlement is reached or appears close. She notes the need for caution if the mediator becomes too involved in drafting or shaping settlement terms. In practice, commercial mediators will recognise that expectations differ, and in some settings a mediator may have a more active role in helping parties convert broad consensus into workable language. Even so, the broader caution is sound. The closer the mediator moves from facilitating agreement to designing substantive terms for the parties, the greater the ethical risk and the greater the possibility, or appearance, of partiality.

Taken together, the two articles remind us that getting ethics right as a mediator is not mainly about avoiding complaint or professional embarrassment. It is about protecting the quality of mediation itself. A mediator who is careless with words, too directive in private session, imprecise in relaying messages, or too ready to move from facilitation into advice may do more than make a technical mistake. The mediator may alter party choice. Once that happens, the core promise of mediation as a process of informed and voluntary decision-making is weakened.

There is also a broader international significance in these articles. ABA Formal Opinion 518 is a US opinion and does not operate as a universal code. Yet the concerns discussed in these pieces travel well beyond the United States. Across jurisdictions, mediation depends on confidence that the mediator is neutral, that the parties understand the role being performed, and that the process is not manipulating outcomes under the language of assistance. In that sense, the ethical themes explored by Feit and Griesing are widely relevant and deserve international attention.

Both articles are therefore worth reading. Feit offers a focused and practical analysis of mediator communications. Griesing provides a broader review of common ethical errors for both neutrals and advocates. Read together, they make a larger point that deserves emphasis: ethics in mediation are the invisible architecture of the process. When they are handled well, parties may hardly notice them, but the entire process depends on them. For mediators, that is an important reminder that ethical discipline is not something separate from good practice. It is good practice.