Code of Conduct:
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. This code of ethics gives meaning to this definition of mediation.
Self-Determination:
A member shall recognize that mediation is based on the principle of self-determination by the parties. Self-determination is the fundamental principal of mediation. It requires that the mediation process rely upon the ability of the parties to reach a voluntary, un-coerced agreement. Any party may withdraw from mediation at any time.
Impartiality:
The concept of mediator impartiality is central to the mediation process. A mediator member 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.
Conflicts of Interest:
A mediator member 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 mediate 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.
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 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.
Confidentiality:
A mediator shall maintain the reasonable expectations of the parties with regard to confidentiality.
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.
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 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 the 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 behaviour in the mediation process to be guided by a desire for a high settlement rate.
Advertising and Solicitation:
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.
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.
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