Code of Conduct for Mediators
The main objectives of this Code of Conduct for Mediators are:
- To provide guiding principles for mediators’ conduct
- To provide a means of protection for mediation participants
- To promote confidence in mediation as a process for resolving disputes
Mediation The process in which an impartial person helps disputing parties reach a voluntary, mutually acceptable resolution of some or all of their issues.
Mediator An impartial person who assists and encourages parties in a dispute to:
- Communicate and work toward resolution in good faith.
- Identify and convey their interests to one another.
- Assess risks.
- Consider possible settlement options.
- Resolve their dispute voluntarily.
Impartial Being unbiased when it comes to the parties in a dispute, their interests, and the options they present for settlement.
Conflict of interest Direct or indirect financial or personal interest in the outcome of a dispute; or any existing or previous financial, business, professional, family, or social relationship which is likely to affect impartiality or might reasonably create an appearance of partiality or bias.
Principle of Self-Determination
- Self-determination is the right of parties in a mediation to make their own voluntary, non-coerced decisions regarding the possible resolution of any issue in dispute. It is a fundamental principle of mediation, which mediators must respect and encourage.
- Mediators must provide information about their role in the mediation before it commences, including the fact that authority for decision-making rests with the parties, not mediators.
- Mediators must not provide legal advice to the parties.
- Mediators have a responsibility to advise parties of the need to consult other professionals to help parties make informed decisions.
- Mediators shall serve only in those matters in which they can remain impartial.
- Mediators have a duty to remain impartial throughout the mediation process.
- If mediators become aware of their lack of impartiality, they shall immediately disclose to the parties that they cannot remain impartial, and withdraw from the mediation.
Conflict of Interest
- Mediators have a responsibility to inform the disputing parties, at the earliest opportunity, of any conflict of interest reasonably known to the mediator.
- Mediators who have disclosed a conflict of interest to the parties shall withdraw as mediator unless the parties consent to retain the mediator.
- Mediators, their associates and/or partners, shall not establish a professional or personal relationship with any of the parties in a matter related to the mediation that could cause a conflict of interest, without the consent of all parties.
- Mediators’ commitment is to the parties and the process, and they shall not allow pressure or influence from third parties (persons, service providers, mediation facilities, organizations, or agencies) to compromise their impartiality.
- Mediators shall inform the parties of the confidential nature of mediation.
- Mediators are not to disclose to anyone who is not a party to the mediation any information or documents that are exchanged before, during or after the mediation process, except:
- With the mediating parties’ written consent.
- When ordered to do so by a court or otherwise required to do so by law.
- When the information/documentation discloses criminal activities and/or an actual or potential threat to human life.
- For any report or summary that is required to be prepared by mediators.
- When the information/documentation is non-identifiable (unless all of the parties otherwise authorize identification), and is used for research, statistical, accreditation, or educational purposes and is limited to only what is required to achieve these purposes.
- If mediators hold private sessions (breakout meetings, caucuses) with a party, they shall discuss the nature of such sessions with all parties prior to commencing such sessions. Mediators shall not disclose anything that is said or given to them in confidence or during private meetings unless the party authorizes them to do so.
- Mediators shall maintain confidentiality in the storage and disposal of mediation notes, records, and files.
Quality of the Process
- Mediators shall make reasonable efforts to ensure the parties understand the mediation process before mediation starts.
- Mediators have a duty to conduct a process that provides parties with the opportunity to participate in the mediation and encourages respect among the parties.
- Mediators must inform parties to a dispute that mediation is most effective when the parties with authority to settle are in attendance and are willing to consider options for settlement.
- Mediators who are lawyers shall not represent any party or parties in the mediation.
- Mediators have an obligation to acquire and maintain professional skills and abilities required to uphold the quality of the mediation process.
Agreement to Mediate
- Before mediation starts, mediators shall ensure that the parties understand the terms of mediation, whether or not they are contained in an agreement/contract to mediate. The terms shall include, but are not limited to:
- Confidentiality of communications and documents.
- The right of the mediator and parties to terminate or suspend mediation.
- The fact that the mediator is not compellable as a witness in court proceedings by any parties to the mediation.
Termination or Suspension of Mediation
- Mediators shall withdraw from mediation if they cannot maintain impartiality or if there is a conflict of interest.
- Mediators may suspend or terminate mediation if requested by one or more of the parties.
- Mediators may suspend or terminate mediation if, in their opinion:
- One or more of the parties is using the process inappropriately.
- One or more of the parties is delaying the process to the detriment of another party or parties.
- The mediation process is detrimental to one or more of the parties, or to the mediator.
- It appears that a party is not acting in good faith.
- There are other reasons that are, or appear to be, counterproductive to the process.
Other Conduct Obligations
Nothing in this Code of Conduct replaces, supersedes, or alienates ethical standards and codes which may be imposed upon any mediator by virtue of the mediator’s professional calling.