The Model Standards of Conduct for Mediators is a set of ethical rules and considerations for mediators. Rather than a strict code of ethics such as those that apply to attorneys, The Model Standards function as guidelines for mediators navigating ethical considerations and dilemmas while conducting mediation. The Model Standards are also a guide for organizations that regulate mediators, as it provides suggestions and an outline for conduct that is acceptable and unacceptable in the wider mediation community. These Standards were created by leading mediation organizations, and many organizations treat the Standards as an authorized set of ethical rules for mediators by adopting them as their own standards.
However, there is also a growing group of practitioners that are calling for the standards to be reformed, as it has been sixteen years since the last amendments were added to the Standards as they currently stand. Mediators have suggested that there are important considerations and situations that are left out of the Standards. Others feel that mediation has grown and expanded since 2005, so it would be imperative to update the rules to reflect the current structure and practice of mediators. This has led to other organizations creating their own standards to govern their organizational mediators. While these arguments have gained some traction, the Model Standards of Conduct for Mediators are still widely regarded as the gold standard for mediator conduct around the world.
This article will give a brief overview of the history and goals of The Model Standards of Conduct for Mediators. Next, it will discuss what is typically included in ethical rules for mediators based on the Standards and some other codes of conduct and present some suggestions that practitioners have proposed for other considerations. After this, it will give an overview of the steps in mediation and how the Standards can influence the decisions that mediators make during these steps. Finally, it will end with a discussion on the mediator’s role in meeting the standards and the top three qualities that make an effective and ethical mediator.
The Model Standards of Conduct for Mediators
The Standards were developed by the American Arbitration Association, the American Bar Association’s Section of Dispute Resolution, and the Association for Conflict Resolution. It was first prepared in 1994, and the same organizations sent representatives to the committee that revised the rules in 2005. All three organizations have approved both sets of Standards. The Standards were designed to serve as fundamental ethical guidelines for mediators in all practice contexts. It focuses on the fact that mediation can happen across a wide variety of settings and cover almost any practice area. The Standards were created with three main goals.
- Guide: The Standards were created to guide the conduct of mediators as they facilitate communication and negotiation.
- Inform: The Standards are also meant to inform the mediating parties about the process of mediation to help them understand when mediation is proceeding in an orderly fashion.
- Promote: The Standards were also created to aid in the promotion of mediation and increase public confidence in the process of mediation.
Evaluating the Standards
The Model Standards list eight standards that are to be kept central for mediators as they facilitate mediation and help parties move toward their goals. The Standards admit that there may be cases where the standards may be limited by applicable law or standards in the area, but it seeks to encourage these standards when applicable. The standards are as follows:
- Self-Determination: The Standards state that a mediator shall base the mediation on the principle of party self-determination and the mediation should be conducted with this in mind. This means that the parties are able to make choices freely and voluntarily without coercion. This also requires that the parties make informed decisions, meaning the mediator needs to create a space to ensure that the parties can learn all of the information necessary for them to make the decision. This may include encouraging the parties to talk to other professionals to ensure that their decision is fully informed.
- Impartiality: The Standards define impartiality as “freedom from favoritism, bias, or prejudice.” A mediator should not participate in mediation if they cannot remain impartial and should withdraw if this arises during mediation. This also includes a bar on conduct that may appear impartial, even if the intent was not to show partiality to one party.
- Conflicts of Interest: Similar to impartiality, conflicts of interest weigh heavily on the mediator’s ability to remain neutral. The Standards require that mediators avoid conflicts of interest and the appearance of conflicts. A conflict may result from an interest in the subject matter of relationships with any party, regardless of the timing or nature. The mediator has to work both before and during the mediation to determine if there are conflicts and must disclose them to the parties immediately upon discovery. This can lead to the mediator withdrawing from the mediation if the conflict could affect the integrity of the process.
- Competence: A mediator should have the competence to satisfy the reasonable expectations of the parties. The Standards allow anyone to mediate but assert that an offer to mediate can cause the parties to expect that the person is competent. The Standards suggest that mediators attend education to improve their practice. They also allow a mediator to determine that they are not competent to continue in the mediation and bars mediators from being impaired by drugs, alcohol, or medications that would affect their competence.
- Confidentiality: Mediators should discuss expectations for confidentiality with the default being to proceed with the mediation in full confidence. Further, a mediator must keep what has disclosed in confidence to the mediator unless the disclosing party allows it. This standard may be controlled by local laws involving confidentiality.
- Quality of the Process: The Standards require a mediator to conduct the mediation in a way that promotes “diligence, timeliness, safety, presence of the appropriate participants, party participant, procedural fairness, party competency, and mutual respect.” This includes paying attention to the time expectations and the mediator’s capacity for more. This also asks mediators to pay attention to instances of abuse among the parties and other inappropriate behavior by any participant.
- Advertising and Solicitation: The Standards also set up standards for advertising, requiring mediators to be truthful in advertising and to not use names of parties served without permission.
- Fees and Other Charges: The Standards require that a mediator disclose all information regarding fees and expenses and should not charge fees in a way that reflects impartiality.
- Advancement of Mediation Practice: Because the Standards aim to advance mediation, they also recommend that mediators conduct themselves in a way that promotes the practice of mediation. This includes fostering diversity, making mediation accessible, researching, educating the public, and assisting newer mediators.
Something important to note is that most of the standards mentioned do not take precedence over others. This means that a mediator must balance the standards against each other, sometimes putting one of the standards in a lower position if it means protecting the process, honoring the parties, and creating the best situation for the parties to find an agreement. The Standards cover much of the mediation process; however, as the practice has grown, other organizations have encouraged other standards in their own rules and other scholars have suggested changes. Some of these suggestions include:
- Creativity: Other organizations see the value in creative mediators and encourage their mediators to be creative in problem-solving.
- Focus on Service: Some organizations see that mediators can provide a valuable service to clients and focus on the service aspect.
- Diligence: Some people believe that the Standards missed an important consideration to diligence. While it requires that the mediators be competent, it does not provide standards to hold mediators to the outcomes of the mediation. This allows mediators to walk away without doing a full and thorough job.
- Respect: While there is a mention of respect, the Standards do not have a full definition of ensuring respect among the parties or caring for parties who may be disrespected.
These suggestions allow room for the Standards to grow as the field of mediation shifts and changes. Combining both the Standards and the suggestions for improvement, it is important to examine the ways that the standards fit into the six steps of mediation.
Fitting Ethics into Mediation
Mediation typically involves six steps to move toward a settlement agreement that the parties can sign. Considering the standards listed above, it becomes apparent how ethical mediators protect the integrity of the system and encourage parties to resolve their disputes effectively. The six steps to mediation include:
- Preparation: Before mediation begins, the mediator and the parties must prepare. For the parties, this means that they prepare their parameters for an acceptable settlement and the possible offers they could bring. For a mediator, this requires an analysis of the issues and whether they are competent to mediate. It also includes discussing fees and costs and making sure there are no conflicts of interest that could jeopardize the mediator’s impartiality.
- Mediator’s Remarks: Once the parties have convened, the mediator will make opening remarks, introducing themselves and assuring the parties of their competency to handle the mediation, as well as the absence of conflict. The mediator will then lay out the ground rules, focusing on confidentiality and impartiality to ensure the quality of the process.
- Opening Remarks: This is where the parties can make their remarks about the process and their stance on the issues. This requires that the parties respect each other in the process and allow the other to be fully heard. Here, the mediator is enforcing rules barring the parties from interrupting each other and creating a rapport with the parties to encourage further trust.
- Joint Discussion: This is a period where the parties can negotiate directly with each other in the same room. This may be a short time or a long time depending on the style of the mediator. Here, the mediator is encouraging respect and creativity.
- Caucuses: Caucuses are times where the parties are separated and the mediator moves between them with offers to consider. Again, the may last for a long time, or the mediator may call the parties together to negotiate. The mediation may move back and forth between joint discussion and caucuses as the mediator or parties request. This allows the mediator to allow the parties to practice self-determination.
- Agreement: This is the final stage where the parties move toward an agreement through a final stage of negotiations. The agreement may be a settlement that concludes the issue, but it may also be an agreement that the parties will not reach an agreement during the mediation. This is where the mediator is focusing on diligence and creativity to ensure the parties make an informed decision.
Living Up to the Standards
Looking at all of these standards, it may feel overwhelming to mediate a dispute ethically. However, while three are many standards, most of the standards tend to part of the best practices of a mediator and become second nature as a mediator gain experience and maturity in their practice. If a mediator approaches their position with an adaptable, creative, and diligent attitude, it will likely follow that the mediation will be carried out ethically. Remembering to keep the service to the parties and the balance of the standards in hand, a mediator will earn the respect of the parties and promote the use of mediation to resolve disputes in the time to come. While meditating does require an ethical and competent mediator to allow the parties the room to discover their solutions and goals, the thrill of helping the parties identify their needs and advocate for them makes the work and the study worth it. Focusing on creating the best possible situation for the parties to discuss their differences while ensuring that the mediator does not choose a side will result in an ethical and productive mediation.