Several years ago in Houston, I attended an interesting presentation on agreement writing and other mediation issues for advocates. The difference between the two presenters struck me enough to still remember after all these years. One presenter talked in terms of moves, strategies, bluffs and get-away-with’s. The other talked in terms of good practice and ethical standards. Though the first mediator never advocated unethical conduct, the second struck me as a professional whose values and ethical standards were at the forefront of his practice. Ethics for him seemed to be a way of life and the way to practice.
At the time, I was editor of The Texas Mediator (Quarterly publication of the Texas Association of Mediators) and, after the presentation, I approached the “ethical mediator” and asked him to write for our publication. Any article would have sufficed, not only because he seemed both knowledgeable and articulate, but because I had the intuition that, whatever he wrote, he would color with the brush of ethics and standards of conduct and that this would be valuable to our readers. Sure enough, he submitted an article about ethics. As a result of reading that ethics article, a former president of the Texas Association of Mediators (TAM), Laury Adams, called me to get the author’s contact information to invite him to speak at a meeting of the Association for Conflict Resolution –Houston (ACRH). He has since been invited to speak on other matters at other conflict resolution conferences and has written several such articles in other publications. For years, he has been a well-regarded and much sought after mediator. He is now the Director of the Institute for Sustainable Peace in Houston, Texas. The presenter’s name is Randy Butler.
I also remember an ethics presentation by another mediator at another TAM conference who stated that it is good practice to offer to return the money to one party if the mediator thinks the other side has no intention of paying the mediator’s fees. This surprised me because I thought at the time that this act was too self-sacrificing and beyond the call of ethics. I felt that we mediators, more often than not, get too few mediations and too many cancellations to be offering the return of fees already earned. But I still remember his message and his name, Greg Bourgeois. Very much like Butler, he is a successful and highly-regarded mediator in Austin, Texas.
A couple of years later, Bourgeois called me for an unrelated matter. He introduced himself, assuming we had never met. To his surprise, I told him how vividly I remembered that “first encounter.” Pleased, he then proceeded to tell me how he first experienced the same message as a litigator when a mediator under similar circumstances offered to return him the money. Bourgeois also vividly remembered the lesson and the mediator who taught it. He also remembered to seek that mediator again.
I share these memories to highlight the impact that, I believe, ethics, professionalism and good standards of conduct can have on both our profession and ourselves. Years later, I still remember the ethical lessons taught. But almost as important, I remember the people who taught them. These are the people I would want to represent me and my profession to the public. These are the people who will make me look good simply because we practice the same profession. These are the people I would hire as lawyers, as mediators or in whatever profession they may choose to practice.
Model Standards of Conduct for Mediators
Related to the above facts, this article discusses the Model Standards of Conduct for Mediators as revised and approved in 2005 by the American Bar Association’s Section of Dispute Resolution, the Association for Conflict Resolution and the American Arbitration Association. They involve nine standards: 1) self- determination, 2) impartiality, 3) conflicts of interest, 4) mediator competence, 5) confidentiality, 6) quality of the process, 7) advertising and solicitation, 8) fees and other charges and, 9) advancement of mediation practice. It is important to note that the sequence in which the standards are mentioned are not meant to signify that one standard has priority over another. (See the standards here.)
Below is a summary of the standards of conduct.
1) SELF-DETERMINATION – A mediator shall conduct a mediation based on the principle of party self- determination. The Standards define self-determination as “the act of coming to a voluntary, uncoerced decision in which each party makes free and informed choices as to process and outcome.”
2) IMPARTIALITY – A mediator shall decline a mediation if the mediator cannot conduct it in an impartial manner. A mediator shall conduct a mediation in an impartial manner and avoid conduct that gives the appearance of partiality. The Standards define impartiality as freedom from favoritism, bias or prejudice.
3) CONFLICTS OF INTEREST – A mediator shall avoid a conflict of interest or the appearance of a conflict of interest during and after a mediation. A conflict of interest can arise from involvement by a mediator with the subject matter of the dispute or from any relationship between mediator and any mediation participant, whether past or present, personal or professional, that reasonably raises a question of a mediator’s impartiality. The language under this standard also reminds mediators to make reasonable inquiries to determine whether there is a conflict of interest and to disclose any such actual or potential conflict to the parties, to withdraw from mediation if appropriate and to avoid subsequent relationships with the mediation participants that would raise questions.
4) COMPETENCE – A mediator shall mediate only when the mediator has the necessary competence to satisfy the reasonable expectations of the parties. This would include training, experience in mediation, skills, cultural understandings and other qualities. A mediator should attend educational programs and activities to maintain and enhance his/her knowledge and skill. A mediator should have available for the parties’ information relevant to the mediator’s training, education, experience and approach to conducting a mediation. The standards also suggest that a mediator should also be willing to withdraw from a mediation upon determination of lack of competence to address the situation.
5) CONFIDENTIALITY – A mediator shall maintain the confidentiality of all information obtained by the mediator in mediation, unless otherwise agreed to by the parties or required by applicable law.
6) QUALITY OF THE PROCESS- A mediator shall conduct a mediation in accordance with these Standards and in a manner that promotes diligence, timeliness, safety, presence of the appropriate participants, party participation, procedural fairness, party competency and mutual respect among all participants. This standard lists several situations in which the mediator should protect the quality of the process, such as: committing the attention essential to an effective mediation; promoting honesty and candor between and among all participants; not misrepresenting any material fact or circumstance; not mixing his/her role of mediator with another professional role; postponing, withdrawing or terminating the mediation if it appears that it is being used by the parties to further criminal conduct or if the mediator is made aware of domestic abuse or violence among the parties; exploring potential accommodations, modifications or adjustments that would help possibly disabled parties to comprehend, participate and exercise self-determination.
7) ADVERTISING AND SOLICITATION – A mediator shall be truthful and not misleading when advertising, soliciting or otherwise communicating the mediator’s qualifications, experience, services and fees. This would include not making any promises as to outcome of mediation.
8) FEES AND OTHER CHARGES- A mediator shall provide each party or each party’s representative true and complete information about mediation fees, expenses and any other actual or potential charges that may be incurred in connection with a mediation. This standard specifies that a mediator’s fee arrangement should be in writing unless the parties request otherwise and that the fees should not be contingent on case outcome but should instead depend on relevant factors such as complexity of the matter, mediator qualifications, time required and customary rates.
9) ADVANCEMENT OF MEDIATION PRACTICE- A mediator should act in a manner that advances the practice of mediation. A mediator promotes this Standard by engaging in some or all of the following:
1. Fostering diversity within the field of mediation.
2. Striving to make mediation accessible to those who elect to use it, including providing services at a reduced rate or on a pro bono basis as appropriate.
3. Participating in research when given the opportunity, including obtaining participant feedback when appropriate.
4. Participating in outreach and education efforts to assist the public in developing an improved understanding of, and appreciation for, mediation.
5. Assisting newer mediators through training, mentoring and networking.
According to this standard, mediators should also seek to learn from other mediators, respect differing points of view within the profession and work to improve the profession and better serve people in conflict.
Local Legislation, Ethical Guidelines or Standards of Conduct
In their search to set the example of ethics and professionalism, mediators should certainly follow the Model Standards of Conduct for Mediators adopted by the national organizations listed above. Furthermore, mediators should also look for local laws, standards and/or guidelines that may have been promulgated by their local legislatures, government agencies or professional organizations. Some of the language regarding these laws, standards or guidelines may be more specific to the needs of the local or target clientele. Also, in some states, some mediator conduct may be required not just suggested.
For example, in Texas, Chapter 154 of the Texas Practice and Remedies Code enacted in 1987 specifies statutorily required conduct of the mediator’s regarding confidentiality. The Texas Supreme Court has also promulgated Ethical Guidelines for Mediators. These Guidelines were adopted with some variations by the Texas Mediators Credentialing Association.
In the race to succeed, to make mediation our day job and to promote ourselves to others, the subject of ethics may often take a back seat. Many of us already think that we are ethical and professional enough, so we concentrate on the practical how-to skills and the search for business and may often ignore ethics as an area of study and professional development. But ethics should be a subject that we study, discuss and practice everyday.
Going back to the ethical professionals mentioned earlier in this article, like them, we can set the example for others, whether our peers or the public, on how to act professionally and ethically. It is not just the money we spend on marketing that will bring us business, it is also how we comport ourselves in our practice. Ethics and good standards of conduct are, definitely, ways by which we can promote ourselves and our profession.
More important, ethical conduct is, or at least should be, a matter of character. It should define us both as human beings and professionals. It should be at the forefront of what we do. Each of us should work towards having a personal ethical vision and a clear idea of the best standards of professional conduct. It is not only good for business, it should be good for the soul.
(right, the bright and beautiful Miss South Carolina, now at the Wharton School of Business; photo links to the NYT article on the Pageant's broken promises) Before there's Miss America,...By Victoria Pynchon