Safeguarding Self-Determination in Family Mediation: Ethical Challenges of Power Imbalance and Violence
Keywords:
Mediation, Family mediation, Ethics, Power imbalance, Domestic violence, Self-determination, Neutrality, Confidentiality.Abstract
The paper explores the ethical dilemmas in family mediation with particular focus on issues of power imbalance and domestic violence. Mediation is presented as a voluntary process grounded in party autonomy and self-determination, yet the study reveals that disparities in resources, knowledge, cultural background, and emotional capacity often undermine these foundational principles. The scope of analysis is broad, examining both structural imbalances - such as financial inequality, legal representation, and informational asymmetry - and personal dynamics, including fear, persuasion, or moral superiority, that may distort the exercise of free will. The discussion situates these challenges within comparative ethical frameworks, referencing the Georgian Law on Mediation, the Code of Ethics for Mediators, and the U.S. Model Standards of Conduct.
A central conclusion is that not every imbalance of power justifies the termination of mediation. Instead, termination should remain an ultima ratio, employed only when the mediator’s strategic interventions cannot restore equality of conditions. The study highlights various tools available to mediators, including private caucuses, involvement of independent professionals, and structured questioning, which may help mitigate imbalances and preserve informed decision-making. However, the presence of violence introduces a distinct and non-negotiable ethical threshold. The research emphasizes that mediation cannot proceed when fear, intimidation, or abuse deprive a party of genuine autonomy. In such contexts, confidentiality is limited by overriding duties to protect health, life, and the best interests of the child.
Ultimately, the paper argues that mediators are not passive facilitators but bear a dual responsibility: to uphold neutrality and impartiality, while also safeguarding the ethical integrity of the process. By balancing these obligations, mediation can remain both a credible and ethically defensible alternative to adjudication.
References
Law of Georgia "Civil Procedure Code of Georgia", Legislative Herald of Georgia, No. 1106, 14/11/1997, Article 1873 (1)(a); Article 1875 (1).
Law of Georgia “On Mediation”, Legislative Herald of Georgia, No. 4954 Iს, 18/09/2019, Article 3; Article 10; Article 10, Paragraph 4, Subparagraph “a”.
Law of Georgia on the Elimination of Violence Against Women and/or Domestic Violence, Legislative Herald of Georgia, No. 3143, 09/06/2006, Article 91.
Model Standards of Conduct for Mediators, AAA, ABA, and ACR, adopted 1994, revised 2005, Standard I A (2).
Professional Ethics Code for Mediators of the LEPL “Georgian Association of Mediators”, approved by the General Assembly April 24, 2021, Article 3 Clause 3.3; Article 4 – Party Self Determination; Article 2 Clause 2.6.
Standards of Ethics of Professional Responsibility for Certified Mediators of the State of Virginia, § F(1) (Judicial Council of Virginia, 2005).
Mediation Council of Illinois, Standards of Practice for Mediators, 1999, Standard I Competence (F).
American Bar Association, Standard 1, 2001.
Article 4 of the Code of Ethics of Mediators of Georgia – Promotion of Self Determination.
Association of Family and Conciliation Courts, Model Standards of Practice for Family and Divorce Mediation, 2000, Standard I (A) and (E).
Abramson H., Crossing Borders into New Ethical Territory: Ethical Challenges When Mediating Cross Culturally, S. Tex. L. Rev., Vol. 49, 921, 2008, 924.
Barrett F., Mortensen R., Tranter K., Alternative Perspectives on Lawyers and Legal Ethics, Reimagining the Profession, Routledge Research in Legal Ethics, London and New York, 2011, 207.
Boyle A., Self determination, Empowerment and Empathy in Mediation: Rehumanising Mediation’s Effectiveness, The Newcastle Law Review, Vol.15, January 2020, 38.
Brandon M., Field R., An Analysis of the Complexity of Power in Facilitative Mediation and Practical Strategies for Ensuring a Fair Process, The Arbitrator & Mediator, 39(1), 2020, 33 and the following.
Capulong E.R.C., Mediation and the Neocolonial Legal Order: Access to Justice and Self Determination in the Philippines, Ohio State Journal of Dispute Resolution, Vol. 27:3, 2012, 641 682.
Chitashvili N., The Scope of Regulation of Mediation Ethics and the Addressees Bound by Ethical Standards, Journal of Law, № 1, 2016, 24 47; 30; 31; 32 33 (in Georgian).
Chitashvili N., Specific Features of Certain Ethical Obligations of the Lawyer-Mediator and the Necessity of Regulation, Journal of Law, № 2, 2016, 41 (in Georgian).
Cooley J. W., Defining the Ethical Limits of Acceptable Deception in Mediation, Pepp. Disp. Resol. L.J., Vol. 4, Iss. 2, 2004.
Davis A. M., Salem R. A., Dealing With Power Imbalances in the Mediation of Interpersonal Disputes, Mediation Quarterly Issue: 6, December 1984, 17 26.
Dunlop N., Mediation Power Imbalances: Weighing the Arguments, October 12, 2018.
Folberg J., Milne A. L., Salem P., Divorce and Family Mediation, Models, Techniques and Applications, The Guilford Press, New York, London, 2004, 429.
Gewurz I.G., (Re)Designing Mediation to Address the Nuances of Power Imbalance, 19 Conflict Resol.Q. 2001, 135 162.
Girdner L.K., Mediation triage: Screening for Spouse abuse in Divorce Mediation, Mediation Quarterly, Vol. 7(4), 1990, 374.
Handling Power Imbalances in Mediation, Schreiber ADR, July 17, 2025.
Irving H.H., Benjamin M., Family Mediation, Contemporary Issues, Sage Publications, United States of America, 1995, 205.
Kakoishvili D., Ethical Obligations of a Mediator in the Mediation Process, Tbilisi, 2020, 4, 6, 9 12, 14 16, 22, 28 29 (in Georgian).
Kandashvili I., Judicial and Non Judicial Forms of Alternative Dispute Resolution on the Example of Mediation in Georgia, Tbilisi, 2018, 72; 77–78; 248 (in Georgian).
Kandashvili I. (ed.), Commentary on the Law of Georgia on Mediation, "Universali", Tbilisi, 2024, 56 96 (in Georgian).
Kovach K.K., Love L.P., “Evaluative” Mediation is an Oxymoron, Alternatives, CPR Institute for Conflict Resolution, Vol.14, Iss. 3, 1996.
Kuźmicz M.M., Equilibrating the Scales: Balancing and Power Relations in the Age of AI, AI & Society, Springer, 2024, 1 18; 15.
Nolan Haley J.M., Court Mediation and the Search for Justice through Law, Washington University Law Quarterly, Vol. 74 47, 1996, 57; 69.
Orjonikidze E., Mediation Guide, Tbilisi, 2021, 33 (in Georgian).
Parkinson L., Family Mediation, Appropriate Dispute Resolution in a New Family Justice System, 2nd ed., 2011, 264 271.
Peppet S.R., ADR Ethics, Journal of Legal Education, Vol. 54, 2004, 77.
Picard C.A., Mediating Interpersonal and Small Group Conflict, The Golden Dog Press, Ottawa Canada, 2002, 131.
Schepard A., An Introduction to the Model Standards of Practice for Family and Divorce Mediation, Fam. L. Q., Vol. 35, 2001, 8 17; 20 21.
Shin C.P., Drafting Agreements as an Attorney Mediator: Revisiting Washington State Bar Association Advisory Opinion 2223, Wash. L. Rev., 2014, 1040.
Smithson J., Barlow A., Hunter R., Ewing J., The Moral Order in Family Mediation: Negotiating Competing Values, Conflict Resolution Quarterly, Vol. 35, No. 2, 2017, 174.
Spencer D., Brogan M., Mediation Law and Practice, Cambridge University Press, 2007, 233.
Steegh N.V., Yes, No, and Maybe: Informed Decision Making about Divorce Mediation in the Presence of Domestic Violence, Wm. & Mary J. Women & L., Vol. 9, 2003, 145 206.
Waldman E., Mediation Ethics, Cases and Commentaries, Jossey Bass A Wiley Imprint, San Francisco, 2010, 87, 94, 94 95, 96, 98, 101, 104, 105, 107.
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