Creating a Code of Disclosure for Mediators

The newly published Singapore International Dispute Resolution Academy (SIDRA) International Dispute Resolution Survey:  2020 Final Report comments on the issue of standards in international mediation.

Article 5(1)(e) of the Singapore Convention sets forth that enforcement may be refused if there was a serious breach by the mediator of standards applicable to the mediator or mediation, without which the settlement agreement would not have been signed. Further, Article 5(1)(f) specifies that enforcement may be refused if the mediator failed to disclose information that gives rise to justifiable doubts regarding the mediator’s impartiality or independence and had the mediator disclosed such information, the parties would not have signed the settlement agreement.

The Singapore Convention neither contains substantive ethical obligations applicable to mediators nor does it make any reference as to how to determine such standards.  (P. 66) Available at: http://mediationblog.kluwerarbitration.com/2020/08/16/what-users-say-about-technology-in-mediation-2020-sidra-survey-part-3/

This is the same issue that Ana Goncalves, Francois Bogacz, and I highlighted at the roll-out of the Singapore Convention, in Singapore earlier this year, and again in an article in the International Journal of Online Dispute Resolution (IJODR), and again in the recent Seven Keys book published by Mediate.com.

The Standards work being done by the Singapore International Mediation Institute (SIMI), the International Mediation Institute (IMI), the US American Bar Association (ABA), the National Center for Technology and Dispute Resolution (NCTDR), and the International Council for Online Dispute Resolution (ICODR) all bear similarities and even have some crossover – some of my colleagues and I are involved in all of the above efforts.

At the risk of flogging a dead issue, the approach that Ana, Francois, and I have suggested is the creation of a code of disclosure for mediators, domestically and internationally.  For years mediation scholars and practitioners have commented on the fractured nature of mediation around the world.  Given this reality, it would be a long, uphill, Sisyphean struggle to create a universal code of conduct or set of standards for international mediation.   However, creating a set of categories that would constitute an adequate disclosure of process and approach that parties could understand and accept is not so daunting.

We should, as a “field,” get on with it.

                       

Daniel Rainey

Daniel Rainey is a Fellow of the National Center for Technology and Dispute Resolution (NCTDR) and a founding Board Member and current President of the International Council for Online Dispute Resolution (ICODR). He has over 30 years of experience in the field of dispute engagement, and since the mid-1990’s has… MORE >