Model Standards of Conduct For Mediators
The Model Standards of Conduct for Mediators were prepared
from 1992 through 1994 by a joint committee composed of two
delegates from the American Arbitration Association, John D.
Feerick, Chair, and David Botwinik, two from the American Bar
Association, James Alfini and Nancy Rogers, and two from the
Society of Professionals in Dispute Resolution, Susan Dearborn
and Lemoine Pierce.
The Model Standards have been approved by the American
Arbitration Association, the Litigation Section and the
Dispute Resolution Section of the American Bar Association,
and the Society of Professionals in Dispute Resolution.
Reporters: Bryant Garth and Kimberlee K. Kovach
Staff Project Director: Frederick E. Woods
The views set out in this publication have not been considered
by the American Bar Association House of Delegates and do not
constitute the policy of the American Bar Association.
Introductory Note
The initiative for these standards came from three
professional groups: The American Arbitration Association, the
American Bar Association, and the Society of Professionals in
Dispute Resolution.
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.
Preface
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 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.
Copies of the Model Standards of Conduct for Mediators are
available from the offices of the participating organizations.
The addresses are listed below.
American Bar Association
Section on Dispute Resolution
740-15th Street NorthWest
Washington, D.C. 20005-1009
(202) 622-1681
Society of Professionals in Dispute Resolution
815-15th Street NorthWest
Washington, D.C. 20005
(202) 783-7277
©2002 American Arbitration Association. All Rights Reserved.