MEDIATION
PROCEDURE
CODE OF CONDUCT
Model Standards of Conduct for Mediators
reprinted by permission
American Arbitration Association
American Bar Association
Society of Professionals in Dispute Resolution
Introductory Note
The initiative for these standards came from three
professional groups: the American Arbitration Association, the American Bar Association,
and the Society of Professionals in Dispute Resolution.
The purpose of this initiative was to develop a set of
standards to serve as a general framework for the practice of mediation. The effort is a
step in the development of the field and a tool to assist practitioners in it -- a
beginning, not an end. The model standards are intended to apply to all types of
mediation. It is recognized, however, that in some cases the application of these
standards may be affected by laws or contractual agreements.
Preface
The model standards of conduct for mediators are intended
to perform three major functions: to serve as a guide for the conduct of mediators; to
inform the mediating parties; and to promote public confidence in mediation as a process
for resolving disputes. The standards draw on existing codes of conduct for mediators and
take into account issues and problems that have surfaced in mediation practice. They are
offered in the hope that they will serve an educational function and provide assistance to
individuals, organizations, and institutions involved in mediation.
Mediation is a process in which an impartial third party --
a mediator -- facilitates the resolution of a dispute by promoting voluntary agreement (or
"self-determination") by the parties to the dispute. A mediator facilitates
communications, promotes understanding, focuses the parties on their interests, and seeks
creative problem solving to enable the parties to reach their own agreement. These
standards give meaning to this definition of mediation.
- Self-Determination:
A Mediator Shall Recognize that Mediation is Based on the Principle of Self-Determination
by the Parties.
Self determination is the fundamental principle of
mediation. It requires that the mediation process rely upon the ability of the parties to
reach a voluntary, uncoerced agreement. Any party may withdraw from mediation at any time.
COMMENTS:
- The mediator may provide information about the process,
raise issues, and help parties explore options. The primary role of the mediator is to
facilitate a voluntary resolution of a dispute. Parties shall be given the opportunity to
consider all proposed option.
- A mediator cannot personally ensure that each party has made
a fully informed choice to reach a particular agreement, but it is a good practice for the
mediator to make the parties aware of the importance of consulting other professionals,
where appropriate, to help them make informed decisions.
- Impartiality:
A Mediator Shall Conduct the Mediation in an Impartial Manner.
The concept of mediator impartiality is central to the
mediation process. A mediator shall mediate only those matters in which she or he can
remain impartial and evenhanded. If at any time the mediator is unable to conduct the
process in an impartial manner, the mediator is obligated to withdraw.
COMMENTS:
- A mediator shall avoid conduct that gives the appearance of
partiality toward one of the parties. The quality of the mediation process is enhanced
when the parties have confidence in the impartiality of the mediator.
- When mediators are appointed by a court or institution, the
appointing agency shall make reasonable efforts to ensure that mediators serve
impartially.
- A mediator should guard against partiality or prejudice
based on the parties’ personal characteristics, background or performance at the
mediation.
- Conflicts
of Interest:
A Mediator Shall Disclose all Actual and Potential Conflicts of
Interest Reasonably Known to the Mediator. After Disclosure, the Mediator Shall Decline to
Mediate unless all Parties Choose to Retain the Mediator. The Need to Protect Against
Conflicts of Interest also Governs Conduct that Occurs During and After the Mediation.
A conflict of interest is a dealing or relationship that
might create an impression of possible bias. The basic approach to questions of conflict
of interest is consistent with the concept of self-determination. The mediator has a
responsibility to disclose all actual and potential conflicts that are reasonably known to
the mediator and could reasonably be seen as raising a question about impartiality. If all
parties agree to mediate after being informed of conflicts, the mediator may proceed with
the mediation. If, however, the conflict of interest casts serious doubt on the integrity
of the process, the mediator shall decline to proceed.
A mediator must avoid the appearance of conflict of
interest both during and after the mediation. Without the consent of all parties, a
mediator shall not subsequently establish a professional relationship with one of the
parties in a related matter, or in an unrelated matter under circumstances which would
raise legitimate questions about the integrity of the mediation process.
COMMENTS:
- A mediator shall avoid conflicts of interest in recommending
the services of other professionals. A mediator may make reference to professional
referral services or associations which maintain rosters of qualified professionals.
- Potential conflicts of interest may arise between
administrators of mediation programs and mediators and there may be strong pressures on
the mediator to settle a particular case or cases. The mediator’s commitment must be
to the parties and the process. Pressure from outside of the mediation process should
never influence the mediator to coerce parties to settle.
- Competence:
A Mediator Shall Mediate Only When the Mediator Has the Necessary Qualifications to
Satisfy the Reasonable Expectations of the Parties.
Any person may be selected as a mediator, provided that the
parties are satisfied with the mediator’s qualifications. Training and experience in
mediation, however, are often necessary for effective mediation. A person who offers
herself or himself as available to serve as a mediator gives parties and the public the
expectation that she or he has the competency to mediate effectively. In court-connected
or other forms of mandated mediation, it is essential that mediators assigned to the
parties have the requisite training and experience.
COMMENTS:
- Mediators should have information available for the parties
regarding their relevant training, education and experience.
- The requirements for appearing on a list of mediators must
be made public and available to interested persons.
- When mediators are appointed by a court or institution, the
appointing agency shall make reasonable efforts to ensure that each mediator is qualified
for the particular mediation.
- Confidentiality:
A Mediator Shall Maintain the Reasonable Expectations of the Parties with Regard to
Confidentiality.
The reasonable expectations of the parties with regard to
confidentiality shall be met by the mediator. The parties’ expectations of
confidentiality depend on the circumstances of the mediation and any agreements they may
make. The mediator shall not disclose any matter that a party expects to be confidential
unless given permission by all parties or unless required by law or other public policy.
COMMENTS:
- The parties may make their own rules with respect to
confidentiality, or the accepted practice of an individual mediator or institution may
dictate a particular set of expectations. Since the parties’ expectations regarding
confidentiality are important, the mediator should discuss these expectations with the
parties.
- If the mediator holds private sessions with a party, the
nature of these sessions with regard to confidentiality should be discussed prior to
undertaking such sessions.
- In order to protect the integrity of the mediation, a
mediator should avoid communicating information about how the parties acted in the
mediation process, the merits of the case, or settlement offers. The mediator may report,
if required, whether parties appeared at a scheduled mediation.
- Where the parties have agreed that all or a portion of the
information disclosed during a mediation is confidential, the parties’ agreement
should be respected by the mediator.
- Confidentiality should not be construed to limit or prohibit
the effective monitoring, research, or evaluation of mediation programs by responsible
persons. Under appropriate circumstances, researchers may be permitted to obtain access to
statistical data and, with the permission of the parties, to individual case files,
observations of live mediations, and interviews with participants.
- Quality
of the Process:
A Mediator Shall Conduct the Mediation Fairly, Diligently,
and in a Manner Consistent with the Principle of Self-Determination by the Parties.
A mediator shall work to ensure a quality process and to
encourage mutual respect among the parties. A quality process requires a commitment by the
mediator to diligence and procedural fairness. There should be adequate opportunity for
each party in the mediation to participate in the discussions. The parties decide when and
under what conditions they will reach an agreement or terminate a mediation.
COMMENTS:
- A mediator may agree to mediate only when he or she is
prepared to commit the attention essential to an effective mediation.
- Mediators should only accept cases when they can satisfy the
reasonable expectations of the parties concerning the timing of the process. A mediator
should not allow a mediation to be unduly delayed by the parties or their representatives.
- The presence or absence of persons at a mediation depends on
the agreement of the parties and mediator. The parties and mediator may agree that others
may be excluded from particular sessions or from the entire mediation process.
- The primary purpose of a mediator is to facilitate the
parties’ voluntary agreement. This role differs substantially from other
professional-client relationships. Mixing the role of a mediator and the role of a
professional advising a client is problematic, and mediators must strive to distinguish
between the roles. A mediator should, therefore, refrain from providing professional
advice. Where appropriate, a mediator should recommend that parties seek outside
professional advice, or consider resolving their dispute through arbitration, counseling,
neutral evaluation, or other processes. A mediator who undertakes, at the request of the
parties, an additional dispute resolution role in the same matter assumes increased
responsibilities and obligations that may be governed by the standards of other
professions.
- A mediator shall withdraw from a mediation when incapable of
serving or when unable to remain impartial.
- A mediator shall withdraw from a mediation or postpone a
session if the mediation is being used to further illegal conduct, or if a party is unable
to participate due to drug, alcohol, or other physical or mental incapacity.
- Mediators should not permit their behavior in the mediation
process to be guided by a desire for a high settlement rate.
- Advertising
and Solicitation:
A Mediator Shall be Truthful in Advertising and
Solicitation for Mediation.
Advertising or any other communication with the public
concerning services offered or regarding the education, training, and expertise of the
mediator shall be truthful. Mediators shall refrain from promises and guarantees of
results.
COMMENTS:
- It is imperative that communication with the public educate
and instill confidence in the process.
- In an advertisement or other communication to the public, a
mediator may make reference to meeting state, national, or private organization
qualifications only if the entity referred to has a procedure for qualifying mediators and
the mediator has been duly granted the requisite status.
- Fees:
A Mediator Shall Fully Disclose and Explain the Basis of Compensation, Fees,
and Charges to the Parties.
The parties should be provided sufficient information about
fees at the outset of a mediation to determine if they wish to retain the services of a
mediator. If a mediator charges fees, the fees shall be reasonable, considering, among
other things, the mediation service, the type and complexity of the matter, the expertise
of the mediator, the time required, and the rates customary in the community. The better
practice in reaching an understanding about fees is to set down the arrangements in a
written agreement.
COMMENTS:
- A mediator who withdraws from a mediation should return any
unearned fee to the parties.
- A mediator should not enter into a fee agreement which is
contingent upon the result of the mediation or amount of the settlement.
- Co-mediators who share a fee should hold to standards of
reasonableness in determining the allocation of fees.
- A mediator should not accept a fee for referral of a matter
to another mediator or to any other person.
- Obligations
to the Mediation Process:
Mediators Have a Duty to Improve the Practice of
Mediation.
COMMENTS:
- Mediators are regarded as knowledgeable in the process of
mediation. They have an obligation to use their knowledge to help educate the public about
mediation; to make mediation accessible to those who would like to use it; to correct
abuses; and to improve their professional skills and abilities.
This Model Mediation Procedure have been
produced by The Canadian Foundation for Dispute Resolution. Any feedback or concerns on
the content of this document please contact CFDR at the addresses below.
The Canadian Foundation for Dispute Resolution
12075, 237 Fourth Avenue S.W., Calgary, Alberta T2P 0H6
Tel. (403) 237-2872 Fax. (403) 237-2753
112 Adelaide Street East, Toronto, Ontario M5C 1K9
Tel. (416) 307-0019 Fax. (416) 307-0011
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