Oregon Mediation Association: Standards of Practice

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Final Draft – June 16, 2000

PREAMBLE

These Standards of Mediation Practice are intended to guide the conduct of mediators in Oregon, to educate participants about appropriate mediator behaviors, and to promote public confidence in mediation as a process for resolving disputes. Each member of the Oregon Mediation Association must agree to abide by these Standards when serving as a mediator. Every mediator is responsible for conducting mediations in a manner that promotes trust in the process and in the integrity and competence of mediators.

These Standards are based on core values applicable to all mediators, recognize mediation as a separate profession, and focus on mediator behaviors. They apply to all types, styles, and contexts of mediation. The Standards do not attempt to define “best practice” or to reflect the variety of appropriate practices which continue to develop in the various contexts in which mediation is practiced.

The following terms are used in these Standards with these definitions:

“Mediation” – Mediation is a consensual process in which a third party mediator works with participants to help them explore and, if possible, reach a mutually acceptable resolution of some or all of the issues in dispute. In these Standards, “mediation” refers to the entire continuum of the mediation process, from initial contact with a participant to closure.

“Participant” – A participant is an individual with a stake in the outcome who is participating in mediation, and who is not a “representative” or “mediator.”

“Representative” – A representative is involved in the mediation solely as an advocate or support person for a participant, e.g., attorney, union representative, counselor, parent, etc.

CORE STANDARDS

I. SELF DETERMINATION

A mediator shall respect and encourage the self-determination of participants in decisions regarding what process to use and regarding whether, and on what terms, to resolve their dispute or issues.

Comments

1. Self determination is a fundamental principle of mediation. Participants must have the capacity and freedom to reach a voluntary agreement. The mediator must not decide any substantive issue for the participants.

2. To encourage self determination, the mediator must clarify the mediation process s/he proposes to use, including the particular style and structure, and must distinguish mediation from other processes such as litigation, arbitration, counseling, fact finding, etc. The mediator may offer his/her process expertise, but participants must be free to choose the particular form of mediation or other dispute resolution process.

3. Each participant must be able to fully comprehend the process, issues, and options for settlement, to make decisions, and must not be acting under fear, coercion, or duress. If the mediator believes that a participant is unable or unwilling to participate effectively in the mediation process, the mediator must suspend or terminate the mediation.

4. The mediator must avoid exerting pressure on a participant, either to participate in mediation or to reach agreement. However, the mediator may and should encourage participants to consider both the benefits of participation and agreement and the costs of withdrawal and impasse.

5. A participant may withdraw from mediation at any time. Even when mediation is “mandatory” the mediator must respect the participant’s determination of whether to continue in the process that is offered.

II. INFORMED CONSENT

A. The mediator shall provide mediation services only when the participants have given their informed consent to participate in the specific mediation process offered by the mediator.

B. The mediator shall disclose to the participants all information about the mediator and his/her services necessary to enable the participants to make an informed decision whether to use or continue the services of the mediator and whether to participate in the specific mediation process. The mediator must disclose the specific mediation procedures to be used and the roles of the mediator, the participants, and their representatives. The mediator must also disclose information regarding conflicts of interest, relationships, confidentiality and fees as specified in these Standards.

C. The mediator shall make reasonable efforts throughout the mediation to assure that the participants are free and able to make choices regarding participation in mediation generally and regarding options for reaching agreement.

Comments

1. The mediator’s duty to disclose is a continuing obligation throughout the process. All disclosures shall be truthful and shall not mislead by omission.

2. The mediator should make the participants aware of the importance of consulting other professionals to help them make informed decisions.

3. If one or more of the participants withdraws from a multi-participant mediation, the mediator may continue the mediation as long as the remaining participants give their informed consent.

III. IMPARTIAL REGARD

The mediator shall demonstrate and maintain a commitment to impartial regard by serving all participants at all times. The mediator shall not have any personal stake in the outcome of the mediation. Where the mediator’s ability to give impartial regard is in question and that question cannot be resolved s/he shall decline to serve or shall withdraw from serving as mediator.

1. Conflicts of Interest. The mediator shall disclose all circumstances that may raise a question as to the mediator’s ability to give the participants impartial regard.

2. Relationships. The mediator shall disclose any present or prior relationship, personal or professional, between the mediator and any participant or their representative that may affect or give the appearance of affecting the mediator’s ability to give impartial regard.

Comments

1. If the mediator has a prior relationship with any participant and has fully disclosed all information required in this Standard, s/he may proceed with the mediation with the consent of all participants.

2. The mediator must exercise his/her judgment and discretion, and must decline to serve, even if the mediation has begun, when:

a) The mediator’s judgment is that a relationship with a participant or a participant’s representative will compromise the fact or appearance of the mediator’s ability to give impartial regard.

b) The mediator believes that, apart from relationships, the fact or appearance of the mediator’s ability to give impartial regard is compromised by the mediator’s personal biases, views, or reactions to any participant, representative, or position.

IV. CONFIDENTIALITY

A mediator shall maintain the reasonable expectations of the participants with regard to confidentiality, except where disclosure is required by law.

Comment

The mediator must clarify with the mediation participants the degree to which communication with the mediator, including communication during any individual sessions, will be confidential.

V. COMPETENCE

A. A mediator shall mediate only when s/he has the necessary knowledge, skills, and abilities to satisfy the reasonable expectations of the participants.

B. The mediator must exercise his/her judgment and discretion as to whether s/he is competent to mediate a particular dispute. When the mediator believes that s/he lacks the knowledge, skills and ability to mediate a particular dispute, s/he must request appropriate assistance, withdraw or decline to serve.

Comments

1. In order to satisfy the reasonable expectations of the participants, the mediator must accurately represent his/her knowledge, skills, and ability to mediate a particular dispute.

2. The mediator must consider factors such as the style of mediation, the subject matter of the dispute, and the specific issues and participants involved when exercising his/her judgment about mediating a particular dispute.

3. A mediator must obtain necessary skills and substantive training, appropriate to his/her area of practice, and must upgrade those skills and training on an on-going basis.

4. A mediator must disclose to the participants the limits of his/her skills or substantive expertise wherever this may be relevant to their mediation.

VI. ENCOURAGE GOOD FAITH DISCLOSURE

The mediator shall encourage participants to participate in good faith and to make full and honest disclosures of all matters material to any agreement reached. The mediator shall discontinue the mediation if, in his/her reasonable judgment, a participant’s bad faith, dishonesty, or nondisclosure is so significant that the fairness and integrity of mediation cannot be maintained.

Comments

1. The mediator must inform participants that it is the obligation of each participant to participate in good faith. The mediator must also inform the participants of the need to be realistic in protecting themselves against possible abuse of the mediation process, since the mediator cannot guarantee that the mediation process will not be abused by any participant.

2. When a mediator believes that a participant is not participating in good faith, such as by nondisclosure or lying, the mediator must encourage that participant to alter the conduct in question. If, after being encouraged to alter the conduct, the participant does not do so, the mediator must decide whether or not to discontinue the mediation.

a) If, in the mediator’s reasonable judgment, the participant’s bad faith is so significant that the fairness and integrity of mediation cannot be maintained, then the mediator shall discontinue mediation. If the mediator discontinues mediation under these circumstances, the mediator shall do so in a manner that does not violate the obligation of confidentiality.

b) If the mediator continues the mediation under these circumstances, the mediator is not obligated to reveal the conduct to the other participant, and may not do so if this would violate the obligation of confidentiality.

VII. FEES

A. The mediator shall fully disclose and explain the basis of any compensation, fees, and charges to the participants.

B. A mediator shall not charge contingent fees or base fees on the outcome of a mediation.

C. A mediator shall not accept a fee for referral of a matter to another mediator or to any other person.

Comments

1. The mediator must inform participants of any fees or charges for which they are responsible.

2. If the mediator receives compensation from a source other than the participants, the mediator must disclose the source, but need not disclose the amount of the compensation.

VIII. ADVERTISING AND SOLICITATION

A mediator shall be truthful in advertising and solicitation for mediation. A mediator shall refrain from promises or guarantees of results.

Comments

1. Advertising or any other communication with the public concerning services offered or regarding the education, training, and expertise of the mediator shall be truthful. No promises or claims of specific results should be made.

2. In an advertisement or other communication to the public, a mediator may make reference to meeting public or private organizational qualifications only if the entity referred to has a procedure for qualifying mediators and the mediator has been granted the requisite status.

IX. DUAL-ROLE LIMITATIONS

A. During mediation, the mediator shall not engage in any non-mediative role.

B. If, prior to mediation, the mediator has engaged in a non-mediative role with one or more of the participants, the mediator may not mediate, except with the informed consent of all participants.

C. After mediation, the mediator may not engage in any non-mediative role with any of the participants, except with the informed consent of all participants.

Comments

1. “Non-mediative roles” include services as an arbitrator, judge, therapist, lawyer, counselor, etc., but does not include providing referrals, information and/or education about mediation or the subject matter of the mediation.

2. Nothing in this Standard is intended to limit the ability of a mediator to share his/her subject matter expertise with the participants to aid them in resolving their dispute, as long as that information is shared equally with all participants.