Mediation has become the alternative dispute resolution process of choice. The simple clinical or technical formula of parties in conflict sitting down withan independent impartial third party neutral to assist them in resolving their dispute has been clouded by the failure to maintain the distinction between a settlement conference and true mediation. Even court-connected mediation programs sometimes perpetuate the cloud by on the one hand referring to "mediation" and on the other "settlement conference," even in the same court-prepared document.
Further problems arise when neutrals either assume the mantle of "mediator" without the necessary training or trained mediator's lapse into the settlement conference mode under the guise of "mediation." The purists tell us there are basically four true current mediation methods that utilize to varying degrees the approaches or styles referred to in my last column.
Common to all is what we refer to as "ethics."
For the last few weeks we have been discussing ethical constraints for lawyers representing clients in mediation. So it seems time to examine the basic ethical rules for mediators themselves. This is because the very foundation of the mediation process is constructed on the backs of these various principles of conduct of fairness and morality designed to achieve a result satisfactory to the involved parties.
When I participated in basic mediation training in 1991, my recollection is that the area of ethics occupied somewhere in the neighborhood of 15 minutes. Today when I conduct mediator training programs, ethics occupies anywhere from one to three hours. Indicating the increased interest and importance of this area over the last almost 20 years, I am scheduled to conduct a full day training on ethics later this year.
While there are many more ethical areas to consider, the basic ones are those that follow. However, keep in mind that with the possible exception of the rules promulgated by the Florida Supreme Court in family law matters, there appears to be no mandated set of rules for mediators. What most of us refer to when searching for the right thing to do in this area is the Model Standards of Conduct for Mediators. Unveiled in 1994 (and later revised in 2005) jointly by the American Arbitration Association, the American Bar Association's Section of Dispute Resolution, and the Association for Conflict Resolution, they stand as the basic ethical bible for mediators.
The Standards are designed to serve as fundamental ethical guidelines for persons mediating in all practice contexts. They are intended to "guide the conduct of mediators; to inform the mediating parties; and to promote public confidence in mediation as a process for resolving disputes." They are intended to be read as an entire document where the word "shall" means "must" for the mediator and "should" is the same as "highly desirable, but not required, and is to be departed from only for very strong reasons and requires careful use of judgment and discretion." Co-mediator teams are likewise included. Interestingly, there is no description of when mediation begins and ends, which indicates that the ethical constraints apply before and after the actual mediation session commences and concludes.
A caveat is that applicable laws, rules of court, governmental regulations, other professional rules of conduct and agreements by the parties may affect application of the Standards. Although these other influences may conflict
with or supersede the Standards, mediators are encouraged to exert all efforts to follow their "spirit and intent" including "honoring all remaining Standards not in conflict with these other sources." Therefore, while not having "the force of law," they are "viewed as establishing a standard of care for mediators." And of course, the impact of this is not lost on those concerned with potential mediator malpractice litigation.
The Standards are the following: Self-Determination: "coming to a voluntary, uncoerced decision in which each party makes free and informed choices as to process and outcome." Impartiality: "freedom from favoritism, bias or prejudice" whether real or by appearance.
Conflicts of Interest: actual, potential, or by appearance that "arise from involvement by a mediator with the subject matter of the dispute or from any relationship between a mediator and any mediation participant, whether past or present, personal or professional, that reasonably raises a question of a mediator's impartiality."
Competence: possessing "the necessary competence to satisfy the reasonable expectations of the parties." Confidentiality: "maintain the confidentiality of all information obtained by the mediator in mediation, unless otherwise agreed to by the parties or required by applicable law."
Quality of Process: obligation to "conduct a mediation in accordance with these Standards and in a manner that promotes diligence, timeliness, safety, presence of the appropriate participants, party participation, procedural fairness, party competency and mutual respect among all participants." Advertising and Solicitation: "be truthful and not misleading when advertising, soliciting or otherwise communicating the mediator's qualifications, experience, services and fees."
Fees and Other Charges: provide "true and complete information about mediation fees, expenses and any other actual or potential charges that may be incurred in connection with a mediation." Advancement of Mediation Practice: "act in a manner that advances the practice of mediation."
So what does this have to do with mediation versus settlement conferences? Simply that the same ethical considerations may not apply to settlement conferences unless they are "MSCs." Not the traditional mandatory settlement conferences but rather what some court-connected settlement programs are referring to as "mediation settlement conferences."
These should be considered "mediations" and thus within the purview ofgeneral mediation ethical constraints such as the Standards," as well as any other rules and regulations such as those established by court-connected programs, etc.
Under Standard I.B., a "mediator shall not undermine party self-determination...for reasons such as higher settlement rates...or outside pressures from court personnel, program administrators, provider organizations, the media or others," as is the case with most settlement conferences.
Standard VI.A.6 cautions that a "mediator shall not conduct a dispute resolution procedure other than mediation but label it mediation in an effort to gain the protection of rules, statutes, or other governing authorities pertaining to mediation." Since, it would seem unethical for a "mediator" to label the settlement conference as "mediation" when in fact it is not, care should be exercised in making the distinction.
A. Marco Turk is professor and director of the Negotiation, Conflict Resolution Peacebuilding Program at California State University Dominguez Hills, a regularly assigned mediator for the California Court of Appeal (2nd Appellate District), and a member of the ARC¹s panel of mediators and arbitrators. He can be reached at email@example.com.