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Mediation Standards Checklist (July 2000)

The Committee on Alternative Dispute Resolution


As courts, industries, businesses and other organizations develop mediation programs, standards will be critical

to fair and effective programs, and to the acceptance and use of these programs by disputants and their advisors.

While mediation providers may choose to follow an existing code of conduct [see accompanying resource list],

they often develop quality standards tailored to their own needs. Typically, in developing standards, providers

research existing codes and cull relevant sections. This is a time-consuming and inefficient process.

The Committee on Alternative Dispute Resolution of The Association of the Bar of the City of New York has

compiled a list of topics, in outline form, as a guide to assist system designers. This list is not intended to be

exhaustive; system designers are encouraged to be innovative and creative. To our knowledge, such a list is not

currently available. The accompanying guide is intended to make the task of developing mediation standards more

efficient and to assist in creating effective standards.

It is hoped that this list will help mediation providers — including, but not limited to court programs, internal

corporate ADR programs, community mediation programs, specialized mediation programs, and states that develop

mediation standards — to consider and identify issues to include in their standards.

Since this list may be consulted by program developers who are not familiar with the terms used or with

mediation concepts, a glossary of terms and a resource list of some representative mediation codes and standards

follow for users’ reference.

For additional information, please contact The Association of the Bar of the City of New York at 212-382-6623.

1. Definitions

A. Mediation

B. Types of mediation approaches

C. Mediator’s role

2. Mediator qualifications

A. Prerequisites

i) Mediator training:

a) Type

b) Minimum number of hours

c) Content (basic, specialized)

d) Sponsor

e) Critique/evaluation of trainees

ii) Mediation experience: minimum number and type of cases, minimum number of hours

iii) Specialization prerequisites/credentials/ experience from other fields

iv) Post-training

a) Working under an experienced mediator/mentor, including being observed and critiqued, co-mediating with mentor, seeking guidance from mentor


c)Formal continuing mediator education (and/or education in specialized area)

B. Formation and Screening for Mediator Panels

i) Competence


b)Written tests

iii) Other criteria

a) Professional association and other panel memberships

b) Other professional activities

c) Non-practitioner experience: writing, teaching, presenting, etc.

d) Mediation references from providers, parties, trainers

3. Mediator Ethics

A. Duty to inform parties of:

i) Parties’ right to self-determination regarding

a) Selection of the mediator

b) Voluntary participation in the process

c) Informed and voluntary decision-making by parties

ii) Right to have a mediation advocate or legal representative present

iii) Required neutrality and impartiality of mediator

iv) Mediator conflicts of interest (and duration of bar to future involvement)

v) Confidentiality

a) Of the process

b) Obligations of the parties and mediator

c) Limits

vi) Mediator style, including

a) Mediation approach

b) Use of caucus/non-caucus/joint session

c) Willingness or resistance to rendering legal advice or opinion

d) Willingness or resistance to providing substantive information to parties

e) Level of lawyer or other representative participation preferred

vii) Binding nature of mediation agreement versus unsigned memorandum of understanding, which is not


viii) Mediator fees, expenses, and any exceptions

B. Other mediator obligations to parties

i)Acknowledging obligation not to accept cases for which s/he is not qualified

ii) Encouraging parties to consider the interests of non-participating persons or entities who may be affected

by the mediation

iii) Encouraging parties to consider how the enforceability and implementation of an agreement may be

impacted by the existence of other agreements, rules or non-participating parties

iv) Referring of parties to mediation advocates or legal representatives or other sources of information,

advice or support

v) Making the process accessible to mediation participants with disabilities

vi) Taking affirmative steps to address a party’s lack of capacity to participate effectively in mediation

vii) Complying with program requirements

viii) Assuring fair process

ix) Assuring party and mediator rights to terminate mediation

x) Refraining from use of coercion or misrepresentation to influence party decision-making

xi) Working with parties to assess whether they need any information or guidance, and how to obtain it

C. Other mediator obligations

i) Contributing to the development of the mediation field

ii) Maintaining and improving professional skills

4. Mediation Provider Organization Requirements

(Individuals not associated with programs should consider self-monitoring on the following issues, until formal

licensing/certification requirements are instituted.)

A. Monitoring mediator competency [see Mediator Qualifications, above]

i) Screen mediators

ii) Decide training and continuing education requirements

iii) Subscribe to a specific code of ethics

iv) Monitor mediators’ performance and adherence to code of ethics

a) Observation and evaluation by provider

b) Evaluation by parties and advocates

B. Case administration

i) Screen cases

a) Assess capacity of parties

b) Match case to appropriate mediator

c) Exclude cases that are inappropriate for mediation

ii) Maintain confidentiality in administrative procedures and documents

iii) Refer to qualified mediators

iv) Provide agreement to mediate

v) Provide accommodations if necessary to make the mediation process accessible to mediation participants

— including mediators –with disabilities

C. Inform parties and representatives about:

i) Whether entry to mediation is voluntary or mandatory

ii) The voluntary nature of participation after entry

iii) Party right to representation

iv) Program and mediation fees

v) The mediation process and procedures

vi) Grievance/complaint mechanisms

vii) Confidentiality limits and rights

viii) Right of any party or mediator to close the mediation

ix) Extent of mediator immunity from being sued

x) The effect of an agreement made as a result of a mediation session

5. Training

A. Content

i) Process

ii) Ethics

iii) Specialized information

B. Methods

i) Appropriate training methods for the potential settings in which mediation will be conducted

ii) Role plays, using process skills that are being taught

C. Evaluation

i) Feedback to participants

ii) Evaluation of participants by providers, and by programs offering certification

iii) Evaluation of training program by participants


The purpose of this glossary is to provide some basic orientation for Checklist users who are not familiar with

mediation terms used in the Checklist. There are a variety of ways to define the terms; this should be considered a

general guide, not a definitive one. Checklist users who are not familiar with mediation concepts are encouraged to

consult with mediation professionals in drawing up their Standards.

Mediation — A process in which a neutral third person assists disputing parties to reach a mutually acceptable


Types of mediation approaches Some examples of mediation approaches: “Facilitative” where the mediator

works on assisting the parties to communicate and collaborate on their resolution; “Evaluative” where the mediator

also provides an opinion as to the likely outcome of issues or of the entire dispute if it should go to litigation or

another adjudicative procedure.

Co-mediation Two mediators mediating a case together.

Apprenticeship A less experienced mediator who works under supervision before taking on cases.

Self-determination The right of the parties to make their own uncoerced decisions regarding their case

Voluntary participation in the process The right of the parties to choose whether or not to participate in


Informed and voluntary decision-making by parties The parties making a decision based on knowledge of the

consequences of the decision and of any waiver of rights that may result.

Mediation advocate or legal representative An individual who serves as an agent and advocate for the party,

advising, counseling, and/or presenting the party’s views. A representative does not make decisions on the party’s


Neutrality Freedom from bias relating to the issues in a mediation. It is generally recognized that absolute

neutrality is impossible to achieve.

Impartiality Freedom from favoritism and bias in word, action and appearance.

Mediator conflict of interest A pre-existing relationship or a condition that might result in the mediator

benefitting from a particular outcome of the mediation.

Confidentiality What is said or produced in the session that the parties and/or the mediator agree not to reveal

outside the mediation session.

Caucus A private meeting between the mediator and one party and the party’s representative.

Joint session A meeting of the parties together with the mediator.

Mediation Provider Organization Institution or organization offering, managing or administering mediation



Checklist users may find it helpful to review some of these resources to get ideas about how to structure their codes

and standards.

A Due Process Protocol for Mediation and Arbitration of Statutory Disputes Arising Out of the Employment

Relationship,” 5/9/95 (under “Protocol”) 212-716-3981

Ethical Standards of Professional Responsibility,” 6/86

Society of Professionals in Dispute Resolution (SPIDR) 202-667-9700

Model Standards of Conduct for Mediators,” 1994

American Arbitration Association/American Bar Association/Society of Professionals in Dispute Resolution (Under “Rules & Procedures, Ethics & Standards”) 212-716-3981

Quality Assurances Statement,” 6/96

National Association for Community Mediation (NAFCM) (under “News”) 202-667-9700

Florida Mediation Code of Conduct – call 850-921-2910 or e-mail [email protected].

Standards for Private and Public Mediators in the State of Hawaii (808) 522-6464

Standards of Ethics and Professional Responsibility for Certified Mediators in Virginia

CPR/Georgetown CPR-Georgetown Commission on Ethics and Standards in ADR’s Model Rule of Professional

Conduct for the Lawyer as Third Party Neutral.

A number of state mediation codes and standards of practice for specialized areas are listed on the web page of the

Mediator Information & Resource Center (MIRC) at

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