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Journal of the National Association of Administrative LawJudiciaryVolume 17 | Issue 2 Article 910-15-1997Model Standards of Conduct for MediatorsAmerican Arbitration AssociationFollow this and additional works at: http://digitalcommons.pepperdine.edu/naaljPart of the Dispute Resolution and Arbitration Commons, and the Ethics and ProfessionalResponsibility CommonsThis Model Code is brought to you for free and open access by the School of Law at Pepperdine Digital Commons. It has been accepted for inclusion inJournal of the National Association of Administrative Law Judiciary by an authorized administrator of Pepperdine Digital Commons. For moreinformation, please contact Kevin.Miller3@pepperdine.edu.Recommended CitationAmerican Arbitration Association, Model Standards of Conduct for Mediators, 17 J. Nat’l Ass’n Admin. L. Judges. (1997)available at http://digitalcommons.pepperdine.edu/naalj/vol17/iss2/9MODEL STANDARDS OF CONDUCTFOR MEDIATORS:American Arbitration AssociationAmerican Bar AssociationSociety of Professionals in Dispute ResolutionThe Model Standards of Conduct for Mediators were preparedfrom 1992 through 1994 by a joint committee composed of twodelegates 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 ofProfessionals in Dispute Resolution, Susan Dearborn and LemoinePierce.The Model Standards have been approved by the AmericanArbitration Association, the Litigation Section and the DisputeResolution Section of the American Bar Association, and the Societyof Professionals in Dispute Resolution.Reporters: Bryant Garth and Kimberlee K. KovachStaff Project Director: Frederick E. WoodsThe views set out in this publication have not been consideredby the American Bar Association House of Delegates and do notconstitute the policy of the American Bar Association.MODEL STANDARDS OF CONDUCT FOR MEDIATORSIntroductory NoteThe initiative for these standards came from three professionalgroups: the American Arbitration Association, the American BarAssociation, and the Society of Professionals in Dispute Resolution.The purpose of this initiative was to develop a set of standardsto serve as a general framework for the practice of mediation. Theeffort is a step in the development of the field and a tool to assistXVII Journal of the National Association of Administrative Law Judges 324practitioners in it--a beginning , not an end. The model standards areintended to apply to all types of mediation. It is recognized, however,that in some cases the application of these standards may be affected bylaws or contractual agreements.PrefaceThe model standards of conduct for mediators are intended toperform three major functions: to serve as a guide for the conduct ofmediators; to inform the mediating parties; and to promote publicconfidence in mediation as a process for resolving disputes. Thestandards draw on existing codes of conduct for mediators and take intoaccount issues and problems that have surfaced in mediation practice.They are offered in the hope that they will serve an educational functionand provide assistance to individuals, organizations, and institutionsinvolved in mediation.Mediation is a process in which an impartial third party--amediator--facilitates the resolution of a dispute by promoting voluntaryagreement (or "self-determination") by the parties to the dispute. Amediator facilities communications, promotes understanding, focusesthe parties on their interests, and seeks creative problem solving toenable the parties to reach their own agreement. These standards givemeaning to this definition of mediation.I. Self-Determination: A Mediator Shall Recognize thatMediation is based on the Principle of Self-Determinationby the Parties.Self-determination is the fundamental principle of mediation.It requires that the mediation process rely upon the ability of the partiesto reach a voluntary, uncoerced agreement. Any party may withdrawfrom mediation at any time.COMMENTS:* The mediator may provide information about the process,raise issues, and help parties explore options. The primary role of themediator is to facilitate a voluntary resolution of a dispute. Parties shallbe given the opportunity to consider all proposed options.* A mediator cannot personally ensure that each party has madea fully informed choice to reach a particular agreement, but it is goodpractice for the mediator to make the parties aware of the importanceof consulting other professionals, where appropriate, to help them makeinformed decisions.H. Impartiality: A Mediator Shall Conduct the Mediation in anImpartial Manner.The concept of mediator impartiality is central to the mediationprocess. A mediator shall mediate only those matters in which she orhe can remain impartial and evenhanded. If at any time the mediator isunable to conduct the process in an impartial manner, the mediator isobligated to withdraw.COMMENTS:* A mediator shall avoid conduct that gives the appearance ofimpartiality toward one of the parties. The quality of the mediationprocess is enhanced when the parties have confidence in theimpartiality of the mediator.* When mediators are appointed by a court or institution, theappointing agency shall make reasonable efforts to ensure thatmediators serve impartially.*A mediator should guard against partiality or prejudice basedon the parties' personal characteristics, background or performance atthe mediation.I. Conflicts of Interest: A Mediator Shall Disclose all Actualand Potential Conflicts of Interest Reasonably Known to theMediator. After Disclosure, the Mediator Shall Decline toMediate Unless all Parties Choose to Retain the Mediator.The Need to Protect Against Conflicts of Interest alsoGoverns Conduct that Occurs During and After theMediation.A conflict of interest is a dealing or relationship that mightcreate an impression of possible bias. The basic approach to questionsFall, 1997 Model Standards of Conduct for MediatorsXVII Journal of the National Association of Administrative Law Judges 326of conflict of interest is consistent with the concept of self-determination. The mediator has a responsibility to disclose all actualand potential conflicts that are reasonably known to the mediator andcould reasonably be seen as raising question about impartiality. If allparties agree to mediate after being informed of conflicts, the mediatormay proceed with the mediation. If, however, the conflict of interestcasts serious doubt on the integrity of the process, the mediator shalldecline to proceed.A mediator must avoid the appearance of conflict of interestboth during and after the mediation. Without the consent of all parties,a mediator shall not subsequently establish a professional relationshipwith one of the parties in a related matter, or an unrelated matter undercircumstances which would raise legitimate questions about theintegrity of the mediation process.COMMENTS:* A mediator shall avoid conflicts of interest in recommendingthe services of other professionals. A mediator may make reference toprofessional referral services or associations which maintain rosters ofqualified professionals.* Potential conflicts of interest may arise betweenadministrators of mediation programs and mediators and there may bestrong pressures on the mediator to settle a particular case or cases. Themediator's commitment must be to the parties and the process.Pressure from outside the mediation process should never influence themediator to coerce parties to settle.IV. Competence: A Mediator Shall Mediate Only Whenthe Mediator Has the Necessary Qualifications toSatisfy the Reasonable Expectations of the Parties.Any person may be selected as a mediator, provided that theparties are satisfied with the mediator's qualifications. Training andexperience in mediation, however, are often necessary for effectivemediation. A person who offers herself or himself as available to serveas mediator gives the parties and the public the expectation that she orhe has the competency to mediate effectively. In court-connected orother forms of mandated mediation, it is essential that mediatorsassigned to the parties have the requisite training and experience.COMMENTS:* Mediators should have information available to the partiesregarding their relevant training, education and experience.* The requirements for appearing on a list of mediators must bemade public and available to interested persons.* When mediators are appointed by a court or institution, theappointing agency shall make reasonable efforts to ensure that eachmediator is qualified for the particular mediation.V. Confidentiality: A Mediator Shall Maintain the ReasonableExpectations of the Parties with Regard to Confidentiality.The reasonable expectations of the parties with regard toconfidentiality shall be met by the mediator. The parties' expectationsof confidentiality depend on the circumstances of the mediation and anyagreements they may make. The mediator shall not disclose any matterthat the party expects to be confidential unless given permission by allparties or unless required by law- or other public policy.COMMENTS:* The parties may make their own rules with respect toconfidentiality, or the accepted practice of an individual mediator orinstitution may dictate a particular set of expectations. Since theparties' expectations regarding confidentiality are important, themediator these expectations with the parties.*If the mediator holds private sessions with a party, the natureof these sessions with regard to confidentiality should be discussedprior to the undertaking of such sessions.* In order to protect the integrity of the mediation, a mediatorshould avoid communicating information about how the parties actedin the mediation process, the merits of the case, or settlement offers.The mediator may report, if required, whether parties appeared at aModel Standards of Conduct for MediatorsFall, 1997XVII Journal of the National Association of Administrative Law Judges 328scheduled mediation.* Where the parties have agreed that all or a portion of theinformation disclosed during a mediation is confidential, the parties'agreement should be respected by the mediator.* Confidentiality should not be construed to limit or prohibit theeffective monitoring, research, or evaluation of mediation programs byresponsible persons. Under appropriate circumstances, researchers maybe permitted to obtain access to statistical data and, with the permissionof the parties, to individual case files, observations of live mediations,and interviews with participants.VI. Quality of the Process: A Mediator Shall Conduct theMediation Fairly, Diligently, and in the Manner Consistentwith the Principle of Self-Determination by the Parties.A mediator shall work to ensure a quality process and toencourage mutual respect among the parties. A quality process requiresa commitment by the mediator to diligence and procedural fairness.There should be adequate opportunity for each party in the mediationto participate in the discussions. The parties decide when and underwhat conditions they will reach an agreement or terminate a mediation.COMMENTS:* A mediator may agree to mediate only when he or she isprepared to commit the attention essential to an effective mediation.*Mediators should only accept cases when they can satisfy thereasonable expectations of the parties concerning the timing of theprocess. A mediator should not allow a mediation to be unduly delayedby the parties of their own representatives.*The presence or absence of persons at mediation depends onthe agreement of the parties and the mediator. The parties and mediatormay agree that others may be excluded from particular sessions or fromthe entire mediation process.* The primary purpose of the mediator is to facilitate theparties' voluntary agreement. This role differs substantially from otherprofessional-client relationships. Mixing the role of a mediator and therole of a professional advising a client is problematic, and mediatorsmust strive to distinguish between the roles. A mediator shouldtherefore refrain from providing professional advice. Whereappropriate, a mediator should recommend that the parties seek outsideprofessional advise, or consider resolving their dispute througharbitration, counseling, neutral evaluation, or other processes. Amediator who undertakes, at the request of the parties, an additionaldispute resolution role in the same matter assumes increasedresponsibilities and obligations that may be governed by the standardsof other professions.* A mediator shall withdraw from a mediation or postpone asession if the mediation is being used to further illegal conduct, or if aparty is unable to participate due to drug, alcohol, or other physical ormental incapacity.•* Mediators should not permit their behavior in the mediationprocess to be guided by a desire for a high settlement rate.VII. Advertising and Solicitation: A Mediator Shall Be Truthfulin Advertising and Solicitation for Mediation.Advertising or any other communication with the publicconcerning services offered or regarding the education, training, andexpertise of the mediator shall be truthful. Mediators shall refrain frompromises of guarantees of results.COMMENTS:* It is imperative that communication with the public educateand instil confidence in the process.* In an advertisement or other communication to the public, amediator may make reference to meeting state, national, or privateorganization qualifications only if the entity referred to has a procedurefor qualifying mediators and the mediator has been duly granted therequisite status.VIII. Fees: A Mediator Shall Fully Disclose and Explain the Basisof Compensation, Fees, and Charges to the Parties.The parties should be provided sufficient information about feesat the outset of the mediation to determine if they wish to retain theModel Standards of Conduct for MediatorsFall. 1997XVH Journal of the National Association of Administrative Law Judges 330services of the mediator. If a mediator charges fees, the fees shall bereasonable, considering, among other things, the mediation service, thetype and complexity of the matter, the expertise of the mediator, thetime required, and the rates customary in the community. The betterpractice in reaching an understanding about fees is to set down thearrangement in a written agreement.COMMENTS:* A mediator who withdraws from mediation should return anyunearned fee to the party.* A mediator should not enter into a fee agreement which iscontingent upon the result of the mediation or amount of the settlement.* Co-mediators who share a fee should hold to standards ofreasonableness in determining the allocation of fees.*A mediator should not accept a fee for referral of a matter toanother mediator or to any other person.IX. Obligations to the Mediation Process: MediatorsHave a Duty to Improve the Practice of Mediation.COMMENT:* Mediators are regarded as knowledgeable in the process ofmediation. They have an obligation to use their knowledge to helpeducate the public about mediation; to make mediation accessible tothose who would like to use it; to correct abuses; and to improve theirprofessional skills and abilities.We wish to express our appreciation for a grant from the HarryDe Jur Foundation.Copies of the Model Standards of Conduct for Mediators areavailable from the offices of participating organizations. The addressesof participating organizations are:Fall, 1997 Model Standards of Conduct for MediatorsAmerican Arbitration Association140 West 51 st StreetNew York, NY 10020-1203Telephone: (212) 484-4000Fax: (212) 307-4387American Bar AssociationSection of Dispute Resolution740 Fifteenth Street, N.W.Washington, D.C. 20005-1009Telephone: (202) 662-1681Fax: (202) 662-1032Society of Professionalsin Dispute Resolution815 Fifteenth Street, N.W. Suite 530Washington, D.C. 20005Telephone: (202) 783-7277Fax: (202) 783-7281Model Standards of Conduct for MediatorsFall. 1997

Model Standards of Conduct for Mediators

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Model Standards of Conduct for Mediators

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