SOMEDAY, MAYBE
THERE WILL EXIST A WELL-INFORMED,
WELL-CONSIDERED, AND YET FERVENT PUBLIC CONVICTION THAT THE MOST DEADLY OF
ALL POSSIBLE SINS IS THE MUTILATION OF A CHILD’S SPIRIT.
ERIK ERIKSON
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CODE OF
CONDUCT
I. Self Determination:
A mediator should recognize that mediation is based on the principle of self-determination
by the parties.
Self-determination is the
fundamental principle of mediation. The mediator should rely upon and encourage the
ability of the parties to reach a voluntary, uncoerced agreement. The parties decide
whether and under what conditions they will reach an agreement or terminate mediation.
COMMENTS:
The mediator's primary role
is to facilitate the voluntary resolution of disputes. The mediator should provide
information about the process, define issues, and help parties explore options. A mediator
should ensure that the parties have the opportunity to consider all proposed options and
to accept or reject them.
A mediator cannot personally
guarantee that a party has made a fully informed choice in reaching an agreement, but the
mediator should ensure that the parties are aware of the importance of making informed
decisions and, where appropriate, the value of consulting other professionals.
II. Impartiality: A
mediator should conduct the mediation in an impartial manner.
The concept of mediator
impartiality is central to the mediation process. A mediator should mediate only those
matters in which the mediator can remain impartial and evenhanded. If the mediator is
unable to conduct the process in an impartial manner, the mediator should withdraw.
COMMENTS:
A mediator should 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.
The primary purpose of a
mediation is to facilitate a voluntary agreement. A mediator should therefore refrain from
providing professional advice, and should recommend, where appropriate, that parties seek
outside professional advice, including legal advice.
III. Conflict of Interest:
A mediator should avoid involvement where it may be inferred that the private interests of
the mediator could conflict with those of a party.
A mediator should avoid
conflicts and the appearance of conflicts of interest that could reasonably be seen as
raising a question about the mediator's neutrality. A mediator should disclose all actual
and potential conflicts of interest reasonably known to the mediator. If all parties agree
to mediate after being informed of actual or potential conflicts, the mediator may proceed
with the mediation. If, however, the conflict of interest appears to be so severe that it
casts serious doubt on the integrity of the process, the mediator should decline to
proceed.
COMMENTS:
There may be strong pressures
on the mediator to settle a particular case or cases. The mediator's commitment should be
to the parties and the process. Pressures from outside of the mediation process should
never influence the mediator to coerce parties to settle.
A mediator should disclose
any potential conflicts of interest in recommending the services of individual
professionals. Alternatively, a mediator may make reference to professional referral
services or associations that maintain rosters of qualified professionals.
A mediator should continue to
avoid the appearance of a conflict of interest during and after the mediation. Without the
consent of all parties, a mediator should not subsequently become the representative for
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.
IV. Competence: A mediator
should mediate only when the mediator has the necessary qualifications.
Any person who offers to
serve as a mediator gives the parties and the public the expectation that the mediator has
the competency to mediate effectively. Training and education in mediation are necessary
for effective mediation. The mediator should also have familiarity with the general
principles and law governing any area in which the mediator is willing to serve.
COMMENTS:
Mediators should refer to the
recommended minimum guidelines for the training of domestic and civil mediators
When a mediator does not
possess the required skills, the mediator should seek a co-mediator trained in the
necessary discipline, seek the assistance of a substantive expert in the field, or refer
cases to other mediators who are trained in the required field of expertise.
A mediator should have
information available for the parties regarding the mediator's relevant training,
education and experience.
V. Confidentiality: A
mediator should maintain the confidentiality of mediation communications.
Confidentiality in
Colorado is defined initially by the Colorado Dispute Resolution Act, CRS § 13-22-301, et
seq. The general rule is that a mediator may not voluntarily disclose and may not
be required to disclose any information regarding either a mediation communication or a
communication provided in confidence to the mediator. Exceptions to this
"non-disclosure requirement" include a) written consent of all of the parties
and the mediator, b) a mediation communication which reveals the intent to commit a
felony, inflict bodily harm or threaten the safety of a child under the age of eighteen
years, c) the communication is required by statute to be made public, and d) in an action
alleging willful or wanton misconduct of the mediator.
COMMENTS:
The mediator should be aware
of the legal limits to the non-disclosure of mediation communications and of any
settlement agreement reached. The mediator should conduct the mediation so as to provide
the parties the greatest protection to confidentiality afforded by law and mutually agreed
to by the parties.
Confidentiality is primarily
governed by the Colorado Dispute Resolution Act, CRS § 13-22-301, et seq.
Examples of other statutes that may limit non-disclosure include the federal
Administrative Dispute Resolution Act and the Freedom of Information Act, disclosure laws
from other states that may have legal jurisdiction, and other Colorado statutes such as
the Child Protection Act of 1987 and those that allow access to settlement information by
third parties whose interests are affected.
Most of the Colorado Dispute
Resolution Act exceptions to non-disclosure are permissive. If faced with a situation
where disclosure is permitted but not required, the mediator must look to his or her own
conscience and reference other sources to decide whether disclosure is appropriate.
A critical part of a
mediator's role is to ensure the parties are familiar with their own and the mediators'
bounds of confidentiality and non-disclosure. The mediator should address the limitations
and exceptions to disclosure prior to the mediation or in the opening statement and
address confidentiality in the Agreement to Mediate.
A mediator should assume any
communication in private session is meant to be kept in confidence unless the mediator is
certain or has confirmed that part or all of this communication may be shared with another
party in the mediation.
The Colorado Dispute
Resolution Act does not specifically address whether an attorney representing a party is
bound by the statute's confidentiality requirements. However, because the lawyer is acting
as the legal representative of a party, the attorney is likely bound to the same
non-disclosure agreed to by the attorney's client.
When an attorney for a party
is not present at a mediation, the mediator should not assume that the party has consented
to allowing the mediator to communicate with the attorney. The mediator should obtain a
release which authorizes the communication. The mediator may want to include the release
within the Agreement to Mediate.
Other individuals attending
the mediation (observers, experts, etc.) may not be limited by the Colorado Dispute
Resolution Act in their disclosure of mediation communications. The mediator should ask
observers or other attendees to sign a confidentiality agreement. Such an agreement may be
incorporated into the Agreement to Mediate.
A mediator sometimes is asked
by a court for information or opinions about the dispute or the mediation. Unless
authorized by a specific exception, the mediator may only report to the Court, if
required, whether the parties appeared at a scheduled mediation. It is inappropriate for a
mediator to report, for example, whether a party mediated in good faith.
VI. Quality of the
Process: A mediator should conduct the mediation fairly and diligently.
A mediator should work to
ensure a quality process in order for mediation to be effective. 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 and under what conditions they will reach an agreement or
terminate a mediation.
COMMENTS:
A mediator should agree to
mediate only when the mediator is prepared to commit the attention essential to an
effective mediation.
The mediator has a duty to
assess the dispute and make a determination that the case is appropriate and suitable for
mediation.
Mediators should only accept
cases where they can satisfy the reasonable expectations of the parties concerning the
timing of the process.
The parties and mediator
should decide who will attend the mediation. The parties and mediator may agree that
others may be excluded from particular sessions or from the entire mediation process.
In the event that the parties
cannot reach an agreement even with the assistance of a mediator, it is the responsibility
of the mediator to make the parties aware of the deadlock and suggest that negotiations be
terminated. The mediator may encourage the parties to explore other dispute resolution
options.
A mediator should not agree
to mediate a dispute or should terminate a mediation under the following circumstances:
(a) the incapacity of a party; (b) a lack of commitment by the parties to the mediation;
(c) the mediation is being used to further illegal conduct; (d) an inability of the
mediator to remain impartial; ex (e) a lack of competence by the mediator to handle the
mediation effectively.
A mediator should postpone a
mediation if any party is unable to participate due to drugs, alcohol, or other temporary
physical or mental incapacity.
If the parties reach an
agreement which the mediator feels is illegal, the result of false information or the
result of bad faith bargaining, the mediator should withdraw or terminate the mediation.
If no confidential mediation communications are disclosed, the mediator may also inform
one or more of the parties of the difficulties which the mediator sees in the agreement.
VII. Advertising and
Solicitation: A mediator should 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 should be truthful. Mediators should refrain from
promises and guarantees of results.
COMMENTS:
Communication with the public
should be kept to a high standard in order to educate and instill confidence in the
mediation process.
In an advertisement or other
communication to the public, a mediator may make reference to meeting state, national, or
private organization qualifications if the entity referred to has a procedure for
certification and the mediator has been duly granted the requisite status.
VIII. Fees: A mediator
should 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
should be reasonable in light of 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.
COMMENTS:
It is highly recommended that
arrangements regarding fees be set forth in writing.
A mediator who withdraws from
a mediation for personal reasons should return the fee to the parties unless the parties
and the mediator have agreed otherwise.
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 a standard of reasonableness in determining the allocation of fees for each
of the mediators.
No commissions, rebates, or
similar forms of remuneration should be given or received for referral of clients for
mediation services.
The mediator should not use
knowledge obtained in a mediation for personal gain or advantage.
IX. Obligations to the
Mediation Process: Mediators should strive to improve the practice of mediation.
Mediators have an
obligation: to use their knowledge to help educate the public about mediation; to make
mediation accessible to those who want to use it; to correct abuses; and to improve their
professional skills and abilities.
COMMENTS:
FOR IMMEDIATE RELEASE
Title of Announcement
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announcement ...
For More Information Contact:
MEDIATEUS INC. FAMILY MEDIATION WISE PERSON PROJECT
PO BOX 2066
Tel: 505-737-9348
FAX: 505-737-5844
Internet:
webmaster@mediateus.com
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