Model Standards of Practice for Mediators

These standards of mediation practice were jointly defined by the American Bar Association (ABA), Association for Conflict Resolution (ACR) and the American Arbitration Association (AAA) and are generally applicable to the mediation of legal disputes. Mediators in Mediate.com’s Qualifications Review Program must subscribe to these standards.

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.

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.

I. 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 options.
• A mediator cannot personally ensure that each party has
  made a fully informed choice to reach a particular
  agreement, but 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.

II. 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.

III. 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.

IV. 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 the 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.

V. 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 other 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 the statistical data and, with
  the permission of the parties, to individual case files,
  observations of live mediations, and interviews with
  participants.

VI. 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 the 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 processes.
• 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.

VII. 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.

VIII. 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.

IX. Obligations to the Mediation Process: Mediators have a
Duty to Improve the Practice of Mediation.

COMMENT:

• 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.

                       

Managing Editor

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