1. A mediator shall recognize that mediation is based on the principle of self-determination by the parties.
2. A mediator shall conduct the mediation in an impartial manner. Impartiality means freedom from favoritism or bias in word, action or appearance.
3. 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.
4. A mediator shall follow the best practices [core competencies] of the credentialing process under which the mediator is operating. A mediator shall maintain professional competency in mediation skills and, where the mediator lacks the skills or necessary subject knowledge for a particular case, shall decline to serve or shall withdraw from serving.
5. Consistent with the laws of the Commonwealth of Pennsylvania (e.g., PA Consolidated Statutes, Title 42, section 5949), a mediator shall maintain the confidentiality of everything in a mediation, including, but not limited to, all oral, written, or electronic communication related to the mediation. The standard of confidentiality shall apply to all such communication occurring before, during and following the mediation.
a. A mediator’s report to a court or other supervising body shall be limited to whether or nor the mediation occurred, and that the mediation either resulted in a settlement or an impasse, or that the mediation was either recessed or rescheduled.
b. A mediator shall obtain the written consent of the participants prior to releasing information about the content of the mediation.
c. Under appropriate circumstances, researchers may be permitted to obtain access to statistical data and, with the permission of all of the parties, to individual case files, observations of live mediations, and interviews with participants.
d. Exceptions to confidentiality are:
(1) A settlement document (a written agreement signed by the parties to the agreement) may be introduced in an action or proceeding to enforce the settlement agreement expressed in the document, unless the settlement document, by its terms states that is unenforceable or not intended to be legally binding.
(2) To the extent that the communication or conduct is relevant evidence in a criminal matter, the privilege and limitation set forth in the General Rule does not apply to:
(i) a communication of a threat that bodily injury may be inflicted on a person;
(ii) a communication of a threat that damage may be inflicted on real or personal property under circumstances constituting a felony; or
(iii) conduct during a mediation session causing direct bodily injury to a person.
(3) The privilege and limitation set forth under the General does not apply to a fraudulent communication during mediation that is relevant evidence in an action to enforce or set aside a mediated agreement reached as a result of that fraudulent communication.
(4) Any document which@otherwise exists, or existed independent of the mediation is not otherwise covered by this exception, is not subject to the privilege.
(5) If any of the parties to a mediation institutes a suit or ethics complaint against the mediator, the mediator may disclose information from the mediation, to the extent necessary, for his/her own defense.
6. A mediator shall conduct the mediation fairly, diligently, and expediently.
7. A mediator shall be limited solely to the role of mediator, and shall not give legal or other professional advice during the mediation.
8. A mediators commitment is to the process and the parties; the mediator should not be influenced by outside forces to settle a case.
9. A mediator may dissociate from any agreement that the mediator perceives to be so far outside the parameters of fairness (based on learned common sense), as to be unreasonable.
10. A mediator shall not actively pursue any mediation that is currently being handled by another mediator without consulting with the person(s) conducting the mediation or without obtaining a clear understanding that the first relationship has been terminated.
11. A mediator shall be truthful in advertising and solicitation for mediation, without guaranteeing or implying any particular outcome or result.
12. A mediator shall fully disclose in writing, and explain the basis of the fees and costs to be charged by the mediator. A mediator shall not charge a contingent fee or a fee based upon the outcome of the mediation. No commissions, rebates, or similar forms of remuneration shall be given or received for referral of clients.
Adopted by the Pennsylvania Council of Mediators Board of Directors November 6, 1998
Lawyers face a great challenge in advising clients about what dispute resolution (DR) process to use. There are many DR processes and people are developing new variations all the time....By John Lande